Lawsuit Calls for Federal Regulation of PFAS in Food, as Federal Agencies Withdraw Other Proposed PFAS Limitations
On January 24, 2025, an Arizona grassroots organization and two individuals filed a federal lawsuit seeking to compel the U.S. Food and Drug Administration (FDA) to act on a citizen petition calling for the agency to set regulatory limits for per- and polyfluoroalkyl substances (PFAS) in various foods. Plaintiffs — the Tucson Environmental Justice Task Force, Arno Krotzky, PhD, and the Law Office of Sandra T. Daussin, PLLC — filed their citizen petition with the FDA in November 2023, asking the FDA to set tolerances for 26-30 types of PFAS detected in lettuce, blueberries, ready-to-eat bread, milk, eggs, salmon, clams, corn silage, and corn snaplage. According to plaintiffs, FDA failed to substantively respond to their petition within the 180-day deadline under the Federal Food, Drug, and Cosmetic Act (FFDCA). In their lawsuit, plaintiffs allege that crops and livestock become contaminated with PFAS through irrigation and drinking water, biosolids used as fertilizer, rainwater, and PFAS-containing pesticides. Plaintiffs claim that FDA-established tolerances would allow any food items “contaminated” with PFAS in excess of regulatory limits to be promptly removed from the marketplace. In support of their petition, plaintiffs point to “enforceable limits” already set by other U.S. and European authorities regulating PFAS in water and food, including the U.S. Environmental Protection Agency’s (EPA) maximum contaminant levels for certain PFAS in drinking water. Plaintiffs purport to bring their claims under the Administrative Procedure Act and FFDCA, alleging that the FDA arbitrarily and unreasonably failed to timely act on their petition. They seek an order requiring the FDA to issue a final decision on their petition by a date certain. The case is Tucson Environmental Justice Task Force v. U.S. Food and Drug Administration, case number 4:25-cv-35, brought in the United States District Court for the District of Arizona. The Arizona lawsuit was filed within days of another federal agency — EPA — withdrawing from White House Office of Management and Budget review its proposal to set PFAS limitations on wastewater effluent. EPA had proposed to revise existing Clean Water Act effluent limitations guidelines and standards to address PFAS in wastewater from PFAS-manufacturing facilities, as part of EPA’s PFAS Strategic Roadmap adopted under the Biden administration. EPA’s January 22, 2025 withdrawal of its proposal followed President Trump’s January 20, 2025 executive order generally freezing proposed federal rulemaking pending further review. The filing of the Arizona lawsuit following EPA’s withdrawal of its proposed effluent limitations reflect what many have predicted will become a trend under the Trump administration: a rollback of federal regulation accompanied by a rise in private actions — or actions by state or local governments — challenging such rollbacks or trying to fill perceived regulatory gaps.
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