The Nickel Report

In January, EPA obtained data that some mosquito control pesticides contained detectable levels of certain PFAS.  In a joint investigation with the State of Massachusetts, EPA found that fluorinated high-density polyethylene (HDPE) containers containing a mosquito control pesticide were leaching PFAS into the product. Now, EPA is testing different brands of fluorinated containers to determine whether they contain and/or leach PFAS and has asked the states with existing stocks of these pesticides to discontinue use as EPA evaluates the issue. Information on the EPA activities can be found here. EPA also began working with USDA and FDA to get a better understanding of the use of fluorinated polyethylene containers for pesticides and other products.

Likely prompted by the coordination with EPA, on August 5th, FDA issued a letter to manufacturers, distributors, and users of fluorinated polyethylene food contact articles. The FDA letter can be found here. FDA is reminding these users that there is an FDA regulation governing the production of these containers. The regulation stipulates that fluorinated polyethylene containers for food contact use may only be manufactured by modifying the surface of the molded container using fluorine gas in combination with gaseous nitrogen as an inert diluent. The regulation does not authorize fluorination in the presence of water, oxygen, or gases other than nitrogen.

Considering the strong congressional interest in understanding and mitigating PFAS exposures, companies should continue to expect EPA, USDA, and FDA to look across the entire value chain for PFAS substances. For instance, at EPA, Administrator Regan asked his PFAS Advisory Council (the EPA Council on PFAS) to provide him with initial recommendations to update a multi-year PFAS strategy. Those recommendations were due on August 5th and are currently being reviewed.

Hunton Andrews Kurth LLP is comprehensively tracking regulatory activities related to PFAS. If you have questions about these or other actions, we can provide assistance.