EPA Condemned for Weak Response to Toxic Takeout Containers

A legal battle between the Environmental Protection Agency (EPA) and a major producer of plastic takeout containers just got a little more complicated, according to a report from The Guardian.

The EPA sued the container maker, a Houston-based firm called Inhance, back in December 2022, on the grounds that Inhance had repeatedly lied to regulators about the presence of PFAS — a notoriously toxic "forever" plastic known to cause or contribute to serious health problems including cancer, liver damage, decreased fertility, asthma, and thyroid disease — in its products.

Now, according to the report, a coalition of the consumer groups Public Employees for Environmental Responsibility (PEER) and the Center for Environmental Health are getting involved in the suit, too. But PEER is targeting the EPA, which the coalition claims hasn't done enough to battle Inhance and its toxic takeout containers.

A fair point, considering that despite the ongoing lawsuit, Inhance — which, per the report, is estimated by the consumer groups to produce around 200 million PFAS-contaminated plastic containers every year — is still distributing products.

"It's a serious and ongoing threat to public health," Bob Sussman, an attorney representing the coalition, told the Guardian. "It involves not only the demonstrated hazards of the PFAS that are in the containers, but the huge number of containers and their economy-wide uses."

And more, though court filings and patent applications show that "Inhance appears to have repeatedly lied to regulators and customers about whether its containers shed PFAS," as the Guardian reports, the EPA and the Department of Justice (DoJ) have reportedly failed to bring these inconsistencies up in court. That's a pretty curious thing to leave out of the legal battle, and a misgiving that, per the Guardian, may bolster the coalition's argument that the plastics industry has too much influence over the EPA.

To back up for a second: according to the report, the whole ordeal started back in January 2021, when the EPA subpoenaed Inhance "for information about its fluorination process" amid a broader agency review of PFAS and the plastics industry. Then, in a meeting with the EPA later that year, Inhance chose to obscure and dismiss evidence of PFAS in their containers. You know, like innocent companies do.

Several months later, in March of 2022, the EPA officially handed Inhance a violation notice, which reportedly included a measure pressing Inhance to cease-and-desist production immediately if they hadn't removed PFAS from their goods; two weeks later, as the Guardian notes, Inhance put out a press release claiming that it was "pleased to announce" that its products weren't riddled with the poisonous plastics.

This is a strategy that Inhance appears to have used more than once. According to the newspaper, a September EPA report claimed that Inhance's "container walls leached [PFAS] into the contents of the container." Inhance then told the protective agency that it would comply with a review of its fluorination process, but wouldn't cease production. The EPA, per the Guardian, didn't "file a lawsuit or alert the public, or press Inhance to halt production" at the time. Meanwhile, that same month, Inhance said in a customer-targeted seminar that "our chemistry does not impart any of these [PFAS] that the EPA is concerned about, and never has... We are not sure where EPA thinks it’s seeing [PFAS] species but it's not from Inhance."

Then, just two months after that, the EPA reportedly submitted documents in which the company admitted that it had been aware since January 2021 that nine different long-chain PFAS, describing these toxins as "'an apparently unavoidable aspect of fluorination of [high-density polyethylene] containers.'"

"After telling the world there was no PFAS in their containers," Sussman, the lawyer for the coalition, told the Guardian, "they are admitting, basically, the chemicals' presence is unavoidable."

If you can believe it, the water gets even murkier from there. In October 2022, about a month after Inhance's eventual admission, the consumer groups in question reportedly filed a notice of intent to sue, a measure that would give the EPA and Inhance 60 days to take action in response. On day 56, the EPA finally sued Inhance – but despite this apparent knowledge of PFAS, didn't ask the court to issue an immediate halt on Inhance's production.

If at this point you're feeling a bit disheartened: completely fair. PFAS are absolutely terrible for human, animal, and environmental health, and Inhance has already admitted that it's impossible to make their goods — which in addition to serving as takeout containers, are used to house personal care products as well — without generating PFAS.

It feels a little insane that production, and thus distribution, is still ongoing. And unfortunately, as it stands, some of the folks involved in the coalition aren't terribly optimistic about the potential outcome.