PFAS Chemical Producers Under Criminal Investigation

By | March 18, 2020

It may sometimes look like alphabet soup when scientists begin writing about perfluorinated chemicals, historically abbreviated PFC. Interestingly, the abbreviation PFC refers to two similar, yet distinctly different chemicals: perfluorinated chemicals and perfluorocarbons.1

Perfluorinated chemicals include perfluorocarbons and other per- and polyfluoroalkyl substances, such as PFOA and PFOS. To reduce confusion, the EPA made the move to use “PFAS” to refer to per- and polyfluoroalkyl substances that describe chemicals in this group, including perfluorocarbons.

Perfluorocarbons (PFCs) are closely related to PFASs, but these persistent chemicals have different effects. The EPA describes PFCs as “among the most potent and longest-lasting type of greenhouse gases emitted by human activities; the chief impact of environmental concern is global climate change.”2

PFAS is a large group of chemical compounds, sometimes referred to as “The Teflon Chemicals”3 or “forever chemicals.”4 These are the chemicals that make products water-, oil-, grease- and stain-resistant; they also are found in firefighting foam.

PFOS and PFOA are two PFAS chemicals that were voluntarily phased out by manufacturers DuPont and 3M — which also happens to sell fluoridated treatment products5 for teeth. A fluoride-awareness group, Fluoride Action Network (FAN) posted on their website that they began tracking these chemicals in 2000 “because of their use in several pesticides.”6

In the phase-out, the first PFOA was voluntarily removed by 3M under pressure from the EPA in 2002. DuPont agreed in 2005 to phase out PFOA by 2015.7

While they are no longer manufactured in the U.S., these are only two of many PFAS chemicals. On top of all this, the EPA reveals “phased out” doesn’t mean “not being used.”8 “There are some limited ongoing uses of PFOS (see 40 CFR §721.9582)” and “Existing stocks of PFOA might still be used and there might be PFOA in some imported articles,” the EPA says.

EPA Investigating PFAS-Related Pollution

Increasingly, scientific data have demonstrated the lethal effects PFAS chemicals have on human health and the environment. This may have been one of the motivating factors for the EPA to launch criminal inquiries into the forever chemicals.

The EPA PFAS Action Plan: Program Update9 of February 2020 reveals the “agency has multiple criminal investigations underway concerning PFAS-related pollution.” They write, “Since 2002, the agency has initiated 12 enforcement actions, including four since 2017.” Earth & Water Law Group founder Brent Fewell is encouraged by the action, as noted in his comments to Bloomberg:10

“Multiple investigations clearly signals EPA is serious about understanding what the manufacturers knew about the chemicals’ toxicity and when they knew it. EPA is likely focused on whether the PFAS manufacturers knowingly failed to disclose to EPA the known risks of the chemical.

It’s not at all surprising that EPA has signaled a criminal investigation or even multiple investigations into PFAS given the heightened health concerns and public attention.”

But he also says less than half of the criminal cases the EPA investigates each year will be prosecuted. The chemicals were originally produced in the 1940s and scientists have been aware the chemicals could leach from packaging into food since the 1950s.11,12

When EPA administrator Andrew Wheeler spoke with Bloomberg Law, he said the agency was committed to addressing contamination but could not give details on an ongoing investigation. However, a 3M filing with the U.S. Securities and Exchange Commission for fiscal year 2019 revealed they were at least one company that had received a subpoena.13

“In December 2019, the Company received a grand jury subpoena from the U.S. Attorney’s Office for the Northern District of Alabama for documents related to, among other matters, the Company’s compliance with the 2009 TSCA consent order and unpermitted discharges to the Tennessee River.”

Clean Up Is Extensive and Expensive

Chemours is the company that emerged from the Dow Chemical and DuPont merger in 2015.14 The company was developed so Chemours would cover liabilities associated with cleanup of PFOA in the environment.

Not long after the company was created, they sought a legal remedy to limit their liability, claiming DuPont’s estimates were “spectacularly wrong.” Litigation and inquiries against both companies allege “fraudulent transfer” in the spinoff.15 This also includes possible criminal investigation by:

“ … the U.S. Department of Justice, Consumer Protection Branch, and the United States Attorney’s Office for the Eastern District of Pennsylvania … regarding PFAS and food contact applications.”

The tangled web of lies and deceit began nearly 60 years ago, making it difficult to unwind in a court of law. However, after recognizing the damage these chemicals were wreaking on human and environmental health, it should have been apparent to manufacturers they could have developed safer alternatives while still enjoying prosperity.

Don’t Be Fooled — Food Packaging Leaches Chemicals

It’s unfortunate that many believe if a product is released on the market it must be safe. Regrettably, nothing could be further from the truth. In fact, 33 scientists included 1,200 peer-reviewed studies in a consensus statement16 to plead with lawmakers “to take swift action to reduce exposure” to plastics in food packaging.17

Jane Muncke from the Food Packaging Forum, and one of the consensus contributors, commented to Food & Environment Reporting Network, expressing concern over the sheer volume of chemicals used in food packaging. Nearly 10 years ago that number was 6,000 authorized chemicals, “Now the latest number we’ve produced is almost 12,000. It just keeps growing and growing.”18

Pete Myers, founder of Environmental Health Services and publisher of Environmental Health News, was also a contributor to the statement. In an editorial on the consensus statement, he wrote:19

” … hazardous chemicals can transfer from food contact materials into food, and some are known endocrine disrupting chemicals, or ‘EDCs.’ EDCs are associated with chronic diseases such as diabetes, obesity, cancer and neurological disorders like ADHD.”

And concluded:

“The authors say while there is a great amount of information for some of the most well-studied food contact chemicals, such as bisphenol A (BPA) and phthalates, many of the 12,000 reported food contact chemicals lack data on their hazardous properties or level of human exposure. This suggests that the human population is exposed to unknown and untested chemicals migrating from food wrappings, with unknown health implications.”

Mischaracterization: FDA Acceptance of Food Contact Plastic

The Environmental Defense Fund (EDF) has written about the FDA process leading to the acceptance of plastics in contact with food and clarified a few misconceptions about the process to “help ensure the public and policy makers understand the shortcomings of FDA’s review and questions regarding the safety of PFAS in food packaging.”20 Some of those mischaracterizations include:

  • Manufacturers claim that anything in contact with food, such as PFAS, must be reviewed before being marketed and sold. Instead, manufacturers use a loophole in the “Generally Recognized as Safe” (GRAS) rule meant to exempt common ingredients such as vinegar and baking soda, in order to pass their chemicals.
  • The FDA does not require in-depth toxicology studies before allowing chemicals in contact with foods on the market. All a company has to do is provide the chemical, toxicological and environmental data it has.
  • In the EDF review of 31 applications accepted by the FDA, the amount of information varied, but the toxicity data was consistently poor.
  • Once a food contact substance is allowed, there is no process to evaluate further evidence the chemical may be dangerous, and the agency has no duty to reassess the decision.

It is apparent that manufacturers would like you to believe their products are safe when classified as GRAS, yet instead they are using legal loopholes to destroy human and environmental health. The list of health concerns associated with PFAS products is not small. They include multiple types of cancers such as breast, liver, ovarian, testicular, prostate and kidney, as well as Non-Hodgkin lymphoma.21,22

Cancer-Causing Mechanisms of PFAS Chemicals

The association between cancer and PFAS chemicals is well established. These are some of the same chemicals found in drinking water in cities through the U.S., in foods and in people. In 2015,23 data from the 2007 to 2010 National Health and Nutrition Examination Survey found 97% to 100% of serum samples taken contained PFAS chemicals PFOA, PFOS, PFHxS and PFNA.

The authors of a recent study24 undertook an analysis of 26 different PFASs to determine the mechanism these chemicals may use to trigger cancer growth in humans and animals. They used the Key Characteristics of Carcinogens framework to identify hazards.

The researchers looked at how the chemicals may change DNA, affect the immune system, alter cellular communication, trigger inflammation and other factors. One of the toxicologists involved in the study commented on the carcinogenic nature: “We found that every single one of them exhibited at least one of the key characteristics.”25

PFOA and PFOS chemicals had the greatest number, with each chemical exhibiting up to five characteristics that may trigger cancer. Chemical substitutions are also likely not safe.

DuPont introduced GenX as a replacement for PFOA in Teflon in 2009 and it has since tested positive to affect hormone activity.26 The EPA has also classified GenX as “having suggestive evidence of carcinogenic potential.”27

How to Avoid PFAS Chemicals

In May 2015, more than 200 scientists from 40 countries signed another consensus statement, called the Madrid Statement on PFAS. This warned about the potential harmful effects of the chemicals, including associations with liver toxicity, adverse neurobehavioral effects, hypothyroidism and obesity.

The scientists recommended avoiding any and all products containing PFAS. You may find additional helpful tips in the Environmental Working Group’s “Guide to Avoiding PFCS.”28 Here are several items to avoid that I’ve suggested in the past:

Pretreated or stain-repellant treatments — Opt out of treatments on clothing, furniture and carpeting. Clothing advertised as “breathable” are typically treated with polytetrafluoroethylene, a synthetic fluoropolymer.

Products treated with flame retardant chemicals — This includes furniture, carpet, mattresses and baby items. Instead, opt for naturally less flammable materials such as leather, wool and cotton.

Fast food and carry out foods — The containers are typically treated.

Microwave popcorn — PFASs may be present in the inner coating of the bag and may migrate to the oil from the packaging during heating. Instead, use “old-fashioned” stovetop non-GMO popcorn.

Nonstick cookware and other treated kitchen utensils — Healthier options include ceramic and enameled cast iron cookware, both of which are durable, easy to clean and completely inert, which means they won’t release any harmful chemicals into your home.

Oral-B Glide floss and any other personal care products containing PTFE or “fluoro” or “perfluoro” ingredients — The EWG Skin Deep database29 is an excellent source to search for healthier personal care options.

Unfiltered tap water — Unfortunately, your choices are limited when it comes to avoiding PFAS in drinking water. Either you must filter your water or get water from a clean source. Although you may think that opting for bottled water is safe, it’s important to realize that PFAS are not regulated in bottled water, so there’s absolutely no guarantee that it’ll be free of these or other chemicals.

Bottled water also increases your risk of exposure to hazardous plastic chemicals such as bisphenol A, which has its own set of health risks. Most common water filters available in supermarkets will not remove PFASs. You really need a high-quality carbon filtration system.

The New Jersey Drinking Water Quality Institute30 recommends using granulated activated carbon “or an equally efficient technology” to remove PFC chemicals such as PFOA and PFOS from your drinking water. Activated carbon has been shown to remove about 90% of these chemicals.


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