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Activists take their campaign to ban Perchlorate to federal court

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“The dose makes the poison,” supposedly said the renaissance physician Paracelsus. The toxicology pioneer looked at everything as poison with only the dose making something, not a poison.

An environmental lawsuit filed Tuesday over perchlorate, a chemical commonly used in food packaging, is likely to turn into a dispute about the dose. But make no mistake about it, the environmental and public health activists who’ve sued want the chemical banned entirely.

Perchlorate is also used in materials to store and transport food. It is both a naturally occurring and man-made chemical.  Perchlorate is found in groundwater, soils, and plants, moving up the food chain to some organically grown foods. Tiny bits, traces, are found in the bloodstreams of almost all humans on the planet.

The Environmental Protection Agency (EPA), under the Safe Drinking Water Act, recently set 56 parts per billion (ppb) as the limit for Perchlorate in the nation’s 50,000 public water systems. The legal limit in California is 6 ppb. EPA’s previous limit was 15 ppb.

Perchlorate, also used in the defense industry, is known to disrupt the thyroid’s function for producing hormones for normal growth and development. It is a “likely human carcinogen.” that can cause endocrine and reproductive systems problems.

In the new lawsuit, the plaintiffs claim:

  • Perchlorate is a chemical compound used as a propellant in rocket fuel. It is also used as an additive in plastic packaging and other food-contact articles to reduce the buildup of static charges resulting from the movement of dry foods, like cereal, flour, and spices.
  • Perchlorate exposure through food is harmful to human health. Exposure is particularly dangerous for fetuses, infants, and young children, as it has been linked to developmental delays, reduced growth, and impaired learning capabilities.

Plaintiffs in the legal action are:

  • The Natural Resources Defense Council (NRDC)
  • The Center for Food Safety (CFS),
  • Breast Cancer Prevention Partners (BCPP),
  • Center for Environmental Health (CEH),
  • Environmental Defense Fund (EDF),
  •  Environmental Working Group (EWG),

NRDC and CFS attorneys are representing those organizations, with Earthjustice representing the others.

The groups contend that the FDA ignored important evidence and relied on flawed reasoning in denying their petition to ban perchlorate in certain food packaging. They are asking the court to vacate the agency’s petition denial, on the ground that it was “arbitrary and capricious.”

In 2014, a similar coalition of environmental groups petitioned FDA to revoke the agency’s 2005 authorization for the use of perchlorate in certain food packaging. FDA denied the petition in 2017.

A copy of the new complaint is available here.

The Plaintiff’s filed the lawsuit in U.S. District Court for the Southern District of New York. It names the U.S. Food and Drug Administration and Acting Commissioner Dr. Norman E. “Ned” Sharpless as defendants.

Spokespeople for the plaintiff organizations have weighed in with specific comments:

  • “Perchlorate is a dangerous chemical that has no place in our food system,” said Ryan Talbott, staff attorney for the Center for Food Safety. “Instead of protecting public health and ensuring safe food supply, FDA caved to industry pressure in a move that ensures continued exposure to this toxic chemical for years to come.”
  • “Perchlorate harms kids, and it is all over our food supply. FDA has enough evidence of these health dangers to take action right now, and its refusal to ban this toxic chemical was reckless,” said Erik D. Olson, Senior Strategic Director for Health and Food for the Natural Resources Defense Council“The courts are absolutely key in blocking brazen Trump administration attempts, like this one, to ignore science and put people at risk for the benefit of private corporate interests.”
  • “A thyroid hormone-disrupting chemical used in rocket fuel, explosives, firearms, and fireworks shouldn’t be coming anywhere near our food, yet the FDA is continuing to defend its use in food packaging. We’ve petitioned, been stalled, our objections and arguments ignored, and our request for a public hearing rejected. It’s now time that the FDA answer in court for not protecting our health,” said Lisette van Vliet, Senior Policy Coordinator for Breast Cancer Prevention Partners.
  • “The FDA’s refusal to end the use of a hormone-disrupting chemical like perchlorate in food packaging endangers the health of babies, pregnant mothers, and the development of infants’ brains,” said Caroline Cox, Senior Scientist for Center for Environmental Health. “The agency has made its priorities clear: politics outweigh sound science and protecting human health.”
  • “FDA’s refusal to ban perchlorate in materials that contact our food is illegal. It flies in the face of the Agency’s own evidence showing that people are exposed to dangerous levels of perchlorate through food,” said Earthjustice attorney Alexis Andaman“Consumers cannot identify every substance that might get into food, and they shouldn’t have to; we need the FDA to do its job and protect our health and welfare.”
  • “FDA’s own scientists showed that infant and toddler exposure to perchlorate increased after it was allowed in contact with food. But the agency completely ignored this crucial data when it refused to ban this toxic chemical in food packaging and processing equipment,” said Tom Neltner, Chemicals Policy Director for Environmental Defense Fund.  “We’re taking action today to protect children’s healthy development.”
  • “Rocket fuel chemicals shouldn’t be in the food we feed to babies and toddlers. There is ample evidence that perchlorate causes developmental delays and impairs learning,” said Melanie Benesh, Legislative Attorney for the Environmental Working Group. “It’s unconscionable that the Trump FDA is ignoring the science and continues to allow perchlorate in food production and packaging. We’re taking FDA to court to force the agency to do its job and protect kids from this toxic chemical.”

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