Public health advocates recently used a little-known legal tool to challenge a recent FDA move allowing a toxic chemical in food packaging. The groups filed an objection to FDA’s decision to continue to allow perchlorate in dry food packaging. They also requested a formal evidentiary public hearing to secure an independent judgment of the agency’s decision.

“Children get one chance at a healthy brain and the FDA’s decision puts that at risk,” says Tom Neltner, chemicals policy director at EDF. “The food supply is already extensively contaminated with perchlorate, and exposure is going up for young children. One in five pregnant women cannot tolerate any perchlorate exposure. We are taking action because the agency missed a crucial opportunity to protect children’s brain development. Their refusal to ban perchlorate in food packaging was both legally and scientifically flawed.”

“Relying on ‘alternative facts,’ the Trump Administration strikes again,” says Erik D. Olson, director of Natural Resources Defense Council’s health program. "This time, it is illegally keeping a toxic chemical on the market.  The FDA’s own data showed perchlorate in nearly all food it tested--in many cases at levels of real concern.  We are demanding that FDA follow the law and scientific reason.” 

“A rocket fuel chemical that leads to brain damage in children should be nowhere near our food,” says Caroline Cox, RD at Center for Environmental Health. “The FDA knows that exposures to this dangerous chemical are increasing among young children, yet still refuses to act. We expect the court to take action to protect our children’s health in the face of the agency’s failure.”

“The FDA should be doing all it can to make sure this highly toxic rocket fuel chemical isn’t in baby food,” says Tina Sigurdson, with Environmental Working Group. “But instead, the agency charged with protecting the nation’s food supply continues its foot-dragging around perchlorate contamination in foods both infants and pregnant women eat. It’s outrageous.”

“Perchlorate is primarily used in rocket fuel. There is no reason FDA should allow a chemical like this in or on food products,” says Cristina Stella, staff attorney at Center for Food Safety. “FDA’s job is to protect the public from toxic chemicals. The Agency’s denial of our petition is irresponsible, illegal, and indefensible.”

Perchlorate is a chemical used in rocket fuel. FDA approved its use in plastic packaging for food in 2005 – despite evidence that it harms fetal and infant brain development. Last month, FDA rejected a 2014 petition by health and environmental organizations to ban the chemical as a food additive.

Perchlorate threatens fetal and child brain development by impairing the thyroid’s ability to use iodine in the diet to make the thyroid hormone – T4 – that is essential to brain development. Food companies add perchlorate to plastic packaging for dry food – like rice cereal, flour, and spices – to reduce the buildup of static charges. Unfortunately, an industry study showed this toxic chemical also migrates into our food. Making matters worse, last year FDA expanded the use of perchlorate to dry food handling equipment.

An FDA report published in 2016 found that virtually all foods sampled had detectable levels of perchlorate. Even more concerning – the amount of perchlorate in foods infants and toddlers eat increased 36% and 24% respectively from 2008-2012 compared to 2005-2006. Dry rice cereal – often the first solid food given to a baby – and barley cereal showed the greatest increase from before and after the decision.

The objection filed with the FDA cites the agency’s refusal to acknowledge evidence that perchlorate exposure increased significantly after its 2005 decision to allow perchlorate in packaging. Additionally, the objection cites evidence that FDA’s initial decision to approve perchlorate grossly underestimated the amount of perchlorate migrating into dry food.

Following FDA’s May 4, 2017, decision not to ban perchlorate, the public has 30 days to file an objection. The objection is filed on behalf of EDF, Natural Resources Defense Council, Breast Cancer Prevention Partners, Center for Environmental Health, Center for Science in the Public Interest, Center for Food Safety, Clean Water Action, Environmental Working Group, and Improving Kids’ Environment. The groups are requesting a formal evidentiary public hearing before an administrative law judge. The hearing will allow the advocates to challenge FDA’s decision and secure an independent judgment of the evidence.

Agency hearings of this kind are very rare. The most recent such hearings appear to have been for cyclamates and acrylonitrile in the 1970s.

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