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Aug 29, 2023

Plastic containers still distributed across the US are a potential health disaster

The Environmental Protection Agency is suing the manufacturer, even as the

The Environmental Protection Agency is suing the manufacturer, even as the company continues to make and sell its toxic products

Consumer groups are condemning the Environmental Protection Agency (EPA) for allowing plastic containers made with toxic PFAS "forever chemicals" to continue being distributed across the economy – even though the agency is suing a top manufacturer over the dangerous compounds leaching into containers’ contents, such as food or personal care products.

The groups are now intervening in the lawsuit and regulatory proceedings between the EPA and Inhance Technologies, which they estimate produces about 200m PFAS-contaminated plastic containers annually.

A review of regulatory documents, court filings and patent applications shows Inhance appears to have repeatedly lied to regulators and customers about whether its containers shed PFAS (per- and polyfluoroalkyl substances) into products stored in them.

Still, the EPA and the Department of Justice have not pointed out the company's inconsistencies in court, and the groups have questioned whether industry influence at the EPA is playing a role in the agency's decision-making.

Last week, the groups formally asked the EPA to order Inhance to stop distributing the containers, and will soon file a motion asking a judge to do the same while highlighting the company's inconsistent statements.

"It's a serious and ongoing threat to public health," said Bob Sussman, an attorney representing the consumer groups. "It involves not only the demonstrated hazards of the PFAS that are in the containers, but the huge number of containers and their economy-wide uses."

PFAS are a class of about 15,000 chemicals often used to make products resistant to water, stains and heat. The compounds are ubiquitous, and linked at low levels of exposure to cancer, thyroid disease, kidney dysfunction, birth defects, autoimmune disease and other serious health problems. They are called "forever chemicals" because they do not naturally degrade in the environment.

The consumer groups include the Public Employees for Environmental Responsibility (Peer) and the Center for Environmental Health. Their action is the latest salvo in a winding three-year regulatory and legal battle over widespread PFAS contamination in plastic containers, which the groups say is not being properly addressed by the EPA or the Food and Drug Administration.

Inhance did not respond to a request for comment, but the company previously told the Guardian it is "in full compliance with all relevant regulations".

Inhance treats plastic containers with fluorinated gas to create a barrier that helps keep products from degrading. The consumer groups and regulators have found the process creates long-chain PFAS as a byproduct. EPA rules implemented in 2020 require companies manufacturing long-chain PFAS to submit for a safety review and approval.

The EPA seemed unaware that PFAS were being added to plastic containers until late 2020 testing by Peer found high levels of PFAS in pesticides stored in Inhance bins. The subsequent EPA investigation unearthed wide-scale contamination of plastic containers.

In January 2021, the EPA subpoenaed Inhance for information about its fluorination process and publicly reminded the plastic industry that companies must submit for a safety review if they manufacture long-chain PFAS. In July 2021, the Guardian reported on the use of PFAS in industrial containers that hold ingredients for food, essential oils and other products.

At a meeting with the EPA in September 2021, Inhance dismissed the agency's evidence showing its containers leached PFAS into pesticides by claiming the chemicals came from the pesticide.

The EPA disagreed, issuing a March 2022 violation notice that ordered Inhance to "immediately cease" production, if it had not yet eliminated the PFAS contamination. Two weeks later, Inhance put out a press release stating it was "pleased to announce" its products did not "impart" long-chain PFAS. The company, at the time, did not cease production or submit its fluorination process for review.

Using information obtained from the violation notice, the EPA wrote in an 8 September 2022 report that additional testing again found "[Inhance's] container walls leached [PFAS] into the contents of the container".

Around the same time, Inhance informed the EPA that it would finally submit its fluorination process for review, but refused to cease production. Still, the EPA did not file a lawsuit or alert the public, or press Inhance to halt production.

In a September webinar aimed at customers, Inhance again publicly claimed its products did not leach PFAS: "Our chemistry does not impart any of these [PFAS] that the EPA is concerned about, and never has … We are not sure where EPA thinks it's seeing [PFAS] species but it's not from Inhance."

But officials at Inhance likely knew those statements were untrue. In documents submitted to the EPA just two months later, the company admitted it had known since January 2021 that its fluorination process created nine long-chain PFAS, which it wrote was "an apparently unavoidable aspect of fluorination of [high-density polyethylene] containers".

"Extensive work by [Inhance] since January 2021 has shown that there is no easy solution to the problem of [PFAS] formation," the documents state.

Moreover, a 2011 peer-reviewed study of Inhance's containers when the company operated as Fluoro-Seal found they leached PFAS. In 2019, the company applied for a patent for a process that would address the problem.

"After telling the world there was no PFAS in their containers, they are admitting, basically, the chemicals’ presence is unavoidable," Sussman said.

Inhance late last year also began claiming that an April 2022 adjustment to its fluorination process reduced PFAS leaching to negligible levels. That was contradicted by a late 2022 peer-reviewed University of Notre Dame study of Inhance containers.

That study found PFOA and other PFAS still leached from the containers at levels as high as 94 parts per billion, or about 3m times above the limit for PFOA in drinking water. Inhance has repeatedly characterized these levels as "low".

In October, the consumer groups filed a notice of intent to sue that was part of the citizen's lawsuit process under the nation's federal toxics laws, giving the EPA and Inhance 60 days to take action to meet their demands. After 56 days, the EPA filed its own lawsuit against Inhance, prompting the court in January to dismiss the consumer groups’ lawsuit on grounds that the EPA had taken action.

But the EPA's suit did not ask the court to order Inhance to immediately halt production of the contaminated containers while the case played out. Instead, it asked the court to order Inhance to stop production if a review of the company's fluorination process by EPA's new chemicals division found the leaching to be a threat to human health.

The new chemicals division is at the center of whistleblower allegations that division management has acted at the industry's behest and has altered scientific documents to make dangerous compounds appear safe.

The EPA's change of position on whether Inhance should cease production during the safety review and failure to address the company's inconsistencies in court could stem from industry influence, said Kyla Bennett, a former EPA scientist with Peer who has coordinated whistleblower complaints in the EPA.

"Judging from what my clients have told me over the last three years, I have zero confidence [the new chemicals division is] going to make the right decision on this," she said.