Fast Food Giants Face Forever Chemicals Litigation

Aron Solomon

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“Forever chemicals” just doesn’t sound good. Pretty much any context one could imagine the term to be used in doesn’t end well. That’s the case with PFAS, an acronym for “per-and polyfluoroalkyl substances” - the forever chemicals in issue here.

Three recent lawsuits about forever chemicals involve their use in fast-food packaging. What began with a Consumer Reports inquiry into fast food packaging quickly turned into a matter for the courts.

The report indicates that fast food giants such as McDonald’s and Burger King, who are defendants in these suits, used food packaging with PFAS. Some of the fast food companies Consumer Reports found were still using PFAS have claimed to have already phased them out.

The reasons these substances have been used for many years is because of the nature of fast food itself. There are over 9,000 substances that are considered to be PFAS and their purpose is to make packaging be able to better withstand wrapping something full of fat and grease. While we all have a pretty good sense of what we’re eating when we choose a fast food meal, many consumers find greasy packaging unpalatable, which is why so many chains still use PFAS.

As highlighted in a piece in Today, widespread use of these forever chemicals remains the rule rather than the exception:

“After testing over 100 food packaging products from 24 restaurant and grocery chains, Consumer Reports found PFAS in multiple types of packaging from every retailer in their research — including chains that promote healthier food, such as Cava and Sweetgreen.”

With so many fast food companies involved, some wonder why only McDonald’s and Burger King have been sued so far. A plausible theory is that hitting the businesses at the top of the fast food pyramid has the potential to send a message that will resonate through the entire industry.

Charlie Cartwright, a South Florida lawyer, elaborates on this notion:

“These lawsuits against two of the most powerful fast-food franchises in the world is a great example of consumer advocacy. While government agencies have recognized that the substances in the food packaging is dangerous, lawsuits such as these can help accelerate the pace of change.”

In an ideal world, the pace of legislative change would be fast enough that lawsuits wouldn’t be necessary as an accelerant. Yet the world isn’t ideal when it comes to fast food companies we trust with our dollars and our health doing the right thing for us and not just their bottom line.

As National Restaurant News reported:

“Attorneys say both the recent report and growing regulatory activity barring the use of per and polyfluoroalkyl substances, or PFAS, in consumer products will likely spark a rise in class-action filings.”

The Consumers Reports investigation found that McDonald's even had PFAS in containers that used paper from "responsible sources,” a designation that makes us as consumers let our guard down. And if anyone was hoping that the packaging that has these dangerous chemicals were found only in less popular products, sorry. At McDonald’s, the packaging for their wildly popular fries and chicken nuggets had among the highest levels of PFAS.

Part of the issue with PFAS is that we still don’t have a picture of how broad or deep the impact of these chemicals are on our bodies. A study cited in North Carolina Health News showed possible links in middle-aged women between PFAS and diabetes. The study showed that these chemicals stay in the body much longer than had been anticipated and could catalyze “a synergistic effect of multiple PFAS on diabetes risk.”

These lawsuits have the potential to help draw a necessary line in the sand for companies to follow the rules and make food-related decisions with consumer health front of mind. Unless that change in corporate mindset finally happens, we as consumers are going to be left guessing as to whether the food we’re being served and the packaging it’s served in is safe.

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Aron Solomon, JD, is the Chief Legal Analyst for Esquire Digital, who has taught entrepreneurship at McGill University and the University of Pennsylvania, and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world.

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