Contaminants Demystified: How Makers Can Keep Products Safe, Avoid Litigation

Heavy metals and per- or poly-fluoroalkyl substances (PFAS) have recently become a larger area of concern for consumers, specialty food makers, and governmental regulators.

During an SFA Regulatory Update webinar titled “Issues in Environmental Contamination and Forever Chemicals in Food Products,” attorney Jeni Lamb Rogers explained what these environmental contaminants and forever chemicals are, and discussed what specialty makers should do to keep consumers safe and avoid litigation.

Environmental contamination in foods “is a challenging problem because, as consumers and specialty food makers, we are dedicated to having natural products,” said Rogers. “To some extent, this is a completely unavoidable issue to have heavy metals present in some amounts in foods.”

Quick Bites

Heavy Metal Watch: The top heavy metals likely found in foods include lead, arsenic, cadmium, and mercury. The FDA has contended that “there is no safe level of leads in foods,” but have offered contamination thresholds for certain categories, including baby foods and juices.

PFAS—The “Forever Chemical”: The synthetic chemicals have been in use in consumer products since the 1950s, do not degrade in the environment, and can be introduced into a food product from packaging or the environment, said Rogers.

Contaminants Present Regulatory Action Risks: The presence of heavy metals and contaminants can potentially open up a specialty food business to litigation and regulatory action. It’s important for businesses to know if their merchandising potentially affected products, noted Rogers.

Staying on Top of Contamination

Rogers explained that, when it comes to heavy metals, the most susceptible foods are grown in the soil, and certain flora, including the cacao tree and coffee plant, have a higher “uptake” of heavy metals, meaning they are more likely to pull contaminants present in the soil into their fruit. Additionally, she explained that heavy metal contamination, like PFAS contamination, can come from packaging, as well as processing and storage.

“Environmental contamination… is going to continue to be a consumer concern and the best way of addressing this is to revisit the supply chain program and the FSVP [Foreign Supplier Verification Program] you have for your products,” said Rogers. “Go thoughtfully through and assess whether your products contain ingredients that are grown or produced in an environment susceptible to environmental contamination.”

If a specialty food maker is unsure if their products have been contaminated, Rogers advised that they test them under attorney-client privilege. In the video below, she explains the process.

Legal Repercussions

In addition to potentially harming the health and well-being of the consumers who enjoy one's specialty product, Rogers emphasized that contaminants’ presence in a product opens a business up for lawsuits and legal action that can devastate a specialty business.

In one example, she explained a case in 2023 whereby specialty butter brand Kerry Gold Butter recalled its products following the discovery of PFAS in its butter wrapper. After the recall, the brand was subject to a consumer fraud lawsuit because the company’s marketing of “Pure Irish Butter” was considered deceptive as the presence of the forever chemicals connoted impurity, said Rogers.

“We will see more and more cases fashioned along the lines of a bright hook like ‘pure’ or ‘clean’…a lesson to bear in mind as you’re thinking about PFAS in packaging,” said Rogers. A company’s marketing tools can amplify the legal fallout after detecting these contaminants in specialty brands.

To learn more about how a specialty food maker can protect itself from contaminants, watch the webinar in the SFA Learning Center. Watch now.