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Health and environmental groups sue FDA again to ban perchlorate

For this new lawsuit to change the prevailing ruling, the agencies that filed suit will need to provide new evidence showing that intake of perchlorate, even at low levels, has adverse health effects.

Dive Brief:

    • A lawsuit filed in a federal court in New York asked to overturn the FDA's 2017 denial of a petition to ban the use of perchlorate in food packaging. The Center for Environmental Health, Natural Resources Defense Council, the Center for Food Safety, Breast Cancer Prevention Partners, Environmental Defense Fund and the Environmental Working Group are the plaintiffs.
    • Plaintiffs contend that the FDA's earlier decision ignored evidence, including its own studies, about the harmful effects of perchlorate and "relied on flawed assumptions," according to the lawsuit. They argue the chemical has been linked to thyroid dysfunction, cognitive deficits in children, reduced growth and impaired learning capabilities.
    • “Rocket fuel chemicals shouldn’t be in the food we feed to babies and toddlers. There is ample evidence that perchlorate causes developmental delays and impairs learning,” said Melanie Benesh, legislative attorney for the Environmental Working Group, in a press release. “We’re taking FDA to court to force the agency to do its job and protect kids from this toxic chemical.”

Dive Insight:

For this new lawsuit to change the prevailing ruling, the agencies that filed suit will need to provide new evidence showing that intake of perchlorate, even at low levels, has adverse health effects. Currently the chemical is approved for use in plastic packaging and food processing equipment for some dry foods like flour and cereal to keep static build-up down.

After the FDA’s initial ruling in 2005 allowing the use of perchlorate in food packaging, the agency’s own research showed a spike in perchlorate levels in foods like salami, bologna and baby rice cereals. In the study, the FDA showed that the amount of perchlorate infants and toddlers eat went up 34% and 23% respectively between 2008 and 2012. Although the agency does not report on the brands tested, more than half of the infant exposure came from baby food, including infant formula. For toddlers with exposure to perchlorate, more than half of their exposure came from dairy products.

Part of the reason that exposure increased is that there is no labeling requirement for food that has contacted perchlorate, either in packaging or the final product. Not having any way to determine if there is perchlorate present exposes consumers to danger, the lawsuit argues, and puts the FDA in violation of the Food Act.

The FDA stands by its own testing levels though, which shows that the estimated mean perchlorate intake for the total U.S. population was 0.7 micrograms per day, the level at which the National Academy of Sciences determined there is no statistically significant effect on health.

However, these cases are not the only times the potential adverse effects of ingesting perchlorate have been brought to the forefront. In 2011, the Environmental Protection Agency found that perchlorate meets the criteria for regulation as a contaminant under the Safe Drinking Water Act and began developing regulations to limit its proliferation. Although confirmed as a harmful substance, no regulations have been issued yet limiting its use. As of June this year, the agency is still seeking public comment regarding the regulation of this chemical in public drinking water.

If the plaintiffs in this latest case prevail, it could change packaging throughout the county, potentially pushing manufacturers toward other solutions. One option could be installing ionized blowers or static neutralization bars into a production line, which evidence suggests could have multiple benefits, from waste reduction to mitigating wear and tear on machinery.

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