Rising alarm over microplastics as pollutants has sparked significant attention, stirring public concern and regulatory scrutiny. While there is both a lack of standardized methods for measuring microplastics and no scientific consensus about their potential health impacts, manufacturers are facing a surge of lawsuits asserting consumer protection claims based on the purported presence of microplastics in bottled water, and questions remain about the approach federal regulatory agencies might take to address the widespread use of plastic products in food production and storage.
What Are Microplastics?
Microplastics are minuscule fragments or fibers of plastic measuring less than 5 mm in diameter—smaller than a pencil eraser. They can originate from a variety of sources, including the breakdown of larger plastic debris, microbeads from personal care products, and synthetic fibers from textiles. These small particles pose environmental challenges because they can be ingested by marine life and other organisms, potentially entering the food chain.
Microplastics have been detected in a wide array of environments. Both tap water and bottled water have been found to contain microplastics, and recent research suggests microplastics can be found in human organs and tissues, including placenta. Although ubiquitous, the increased attention on microplastics may put pressure on regulators to develop and enforce stricter environmental and safety standards, pushing for more comprehensive research and oversight to safeguard public health and ecosystems. States are also closely monitoring the evolving research on microplastics. California, for example, has implemented testing requirements for certain consumer products and drinking water.
Federal Regulation of Microplastics
To date, the Microbead-Free Waters Act of 2015, which prohibits the use of microbeads in rinse-off cosmetic products, is the sole federal legislation aimed specifically at microplastics in consumer goods. The US Food and Drug Administration (FDA) and US Environmental Protection Agency (EPA) have sponsored and encouraged extensive research into microplastics, but neither has proposed regulations specifically targeting microplastics such as through pollution control, drinking water standards, or packaging, food additive, and food contact substance regulation.
FDA’s approach to per- and polyfluoroalkyl substances (PFAS) could be instructive. With respect to PFAS, FDA’s recent strategy has been to encourage companies in the food industry to voluntarily cease the sale of grease-proofing substances containing certain types of PFAS. With respect to microplastics, rather than attempting to address the issue through the lengthy notice and common rulemaking process, FDA may similarly encourage companies to phase out or significantly reduce the use of certain plastics in food production and storage.
Class Action Litigation Involving Microplastics
As media reports about microplastics have increased, so too have class action lawsuits. Since January, at least seven putative class actions have been filed against bottled water companies alleging the companies falsely advertised their bottled water as “natural” when the water actually contained unnatural microplastics.
Unfortunately, these lawsuits are harbingers of similar claims to come against bottled (and possibly filtered) water companies, and perhaps more broadly against food and beverage manufacturers that use plastic packaging. They should also serve as a reminder to food manufacturers and marketers to set out their environmental claims with precision and ample substantiation, as well as the need for clear indemnification provisions in contracts with suppliers (e.g., food and beverage packaging suppliers) in the event litigation arises.