Microplastics Bring Macro Concerns to the Food Space

Brownstein Hyatt Farber Schreck

Brownstein Hyatt Farber Schreck

While the term “microplastics” has been making waves in certain circles, especially in the context of seafood and water, broader public unease about their presence in our foods is ramping up at a concerning pace. A recently released study on microplastics in U.S.-based proteins is likely to make microplastics a centerpiece of litigation and regulatory concerns, with multiple lawsuits already underway.

The recent study by researchers associated with the University of Toronto and Ocean Conservancy found microplastics particles in 88% of protein food samples across 16 types of commonly consumed protein products, “dietary staples.” This included beef, pork, chicken, seafood, tofu and three different plant-based meat alternatives. Contrary to what many previously assumed, microplastics seem to be appearing in an increasing number of foods central to diets across the country.

What are microplastics really, and what’s the scale of this issue?

Microplastics are small plastic pieces under 5 millimeters long. They can range from the diameter of a grain of rice or hair to a size only detectable by a microscope. The presence of microplastics in food is not new, but it was generally understood to be reserved to seafood as opposed to terrestrial animals or plant-based proteins and technological advances in microscopes have made it easier to identify the presence of the plastic. The recent report also suggests that humans are consuming more plastic than previously understood.

Interestingly, the study found no statistical difference between brand types (organic vs conventional), nor high-processed products and fresh-caught products. However, “highly-processed products contained the most microplastics per gram,” “suggesting that processing is another potential source of microplastics in our food.” Beyond the oceans, the findings suggest that “microplastics are present in the atmosphere and soils worldwide.” How microplastics move through the food chain and supply chains, from water, soil, to the plants and livestock, to processing and packaging is highly complex.

In terms of what this means, given the study’s authors note that “there’s no way to hide from plastics if you’re eating,” the impacts of microplastics in the human body are generally not well understood. The study found that on the highest end, “U.S. adult exposure from these proteins is ∼3.8 million microplastics/year.” Surveys of studies find that “exposure may cause particle toxicity … [and] the inability of the immune system to remove synthetic particles may lead to chronic inflammation” and that microplastics may be a vector for other contaminants. Regardless of the need for further research, uncertainty will not stop lawyers and regulators from taking action.

We expect the following types of claims to continue rapidly emerging, indicating companies in the food and agriculture space should begin preparing now.

Types of Claims to Anticipate

  • Violation of Sections 402 and 403 of the Food Drug and Cosmetic Act for having adulterated and misbranded food
  • Violations of Section 5 of the Federal Trade Commission Act Section 5: Unfair or Deceptive Trade Practices
  • Violations of state consumer protection statutes related to misleading claims, false advertising claims, unfair competition claims
  • Fraud
  • Unjust enrichment

Companies would be wise not to ignore this issue. As seen in recent class action filings in Illinois and California against bottled water companies for the presence of microplastic particles in beverage products, the lawsuits against the food industry will come. Lawyers who pursue these claims are quickly evaluating every angle of the food industry to find additional possible defendants, ranging from food packaging companies to companies that supply many grocery store staples.

Actions to Take Now

  • Work with your attorneys to arrange for product testing. Find out what sort of exposure your company might have by proactively engaging testing contractors.
  • Review manufacturing agreements to determine where liability might arise and to whom that responsibility falls. Do your contracts appropriately allot liability? Do your manufacturers test for the presence of microplastics? Identifying where microplastics enter the lifecycle of a given food product is critical to assessing risk.
  • Review distribution and retail agreements for indemnification obligations in the likely event that additional lawsuits are filed.
  • Consider the scope of your insurance and how it treats this issue, especially policies around advertising, recalls and the scope of additional insureds.
  • Work with your trade associations to understand best practices; many other industries have already begun trying to wrap their arms around the issue of microplastics. Learning from others will give your company an advantage in assessing risk and taking proactive steps.

Why Pay Attention?

The key takeaway here is that microplastics are present in human food at levels few understood until recently. This new report on U.S. protein is likely to form the foundation of government investigations and consumer lawsuits. If not already, companies in the food space would be wise to start to better understand the implications for their products and supply chains, and to understand their legal risk exposures.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Brownstein Hyatt Farber Schreck

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