S-4724-119
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
Sponsored by Richard Blumenthal (D-CT)
What it does
This bill would amend the Federal Food, Drug, and Cosmetic Act to declare 15 categories of chemicals — including PFAS, phthalates, bisphenol compounds, formaldehyde, benzene, and asbestos — automatically unsafe for use in food contact materials such as packaging, containers, and wrapping. It would take effect two years after enactment. The bill also requires the FDA to consider effects on vulnerable populations when reviewing petitions for alternative substances, and it explicitly preserves the right of states and localities to enact equal or stricter standards.
Who benefits
Consumers broadly, particularly those who regularly consume packaged or processed foods. Vulnerable populations specifically named in the bill: infants, children, adolescents, pregnant women, the elderly, individuals with preexisting medical conditions, and workers with occupational chemical exposure. Communities with disproportionate environmental exposures. Manufacturers of alternative, non-listed packaging materials (e.g., plant-based or uncoated paper packaging). States like California that have already enacted stricter chemical standards and would see their laws preserved. Environmental and public health advocacy organizations.
Who is hurt
Food packaging manufacturers that currently use any of the 15 listed chemical classes and would need to reformulate or retool production lines within two years. Food and beverage companies that rely on packaging incorporating these chemicals and would face supply chain disruption and increased costs. Chemical manufacturers that produce the listed substances for food-contact applications. Small food producers with fewer resources to absorb transition costs. Consumers who may face higher food prices if packaging costs rise. Workers in chemical and packaging manufacturing facilities that may reduce output or close lines.
Supporters argue
Supporters argue that the listed chemicals — including PFAS, phthalates, and bisphenols — have been linked in peer-reviewed research to hormone disruption, cancer, and developmental harm, and that the FDA's existing food contact substance review process has been too slow to remove them. They contend that Congress acting directly to deem these substances unsafe, rather than delegating the determination to the agency, provides the clear statutory authorization that courts now require under West Virginia v. EPA (2022) and Loper Bright (2024). They also point to the European Union's broader restrictions on many of these same chemicals as evidence that safer alternatives are commercially viable at scale.
Opponents argue
Opponents argue that the bill bypasses the FDA's science-based risk assessment process by legislatively declaring substances unsafe without requiring dose-response analysis or exposure thresholds — a blunt approach that may ban chemicals at trace levels that pose no demonstrated harm. They contend the two-year compliance window is insufficient for industries to identify, test, and scale up alternative materials, potentially causing packaging shortages or food safety problems from inadequately tested substitutes. They also argue that the bill's broad class-based bans — covering entire chemical families like "all PFAS" — could sweep in compounds with very different toxicity profiles, creating regulatory overreach that courts may scrutinize under the Due Process Clause.
Constitutional context
Congress has broad authority to regulate food safety under the Commerce Clause (Art. I, §8, cl. 3), as food packaging materials move extensively in interstate commerce — well within the aggregation principle established in Wickard v. Filburn (1942). Because this bill acts through direct statutory mandate rather than agency rulemaking, it largely sidesteps the major questions doctrine concerns raised in West Virginia v. EPA (2022) and the post-Chevron scrutiny of Loper Bright v. Raimondo (2024); Congress itself is making the safety determination, not delegating it to FDA.
Checks and balances
Congress gains authority by directly deeming substances unsafe, bypassing FDA's normal petition-based review process; FDA retains a limited role in evaluating alternative substances, and courts retain authority to review constitutional challenges, including potential Due Process or Takings claims from affected manufacturers.
Historical precedent
The Delaney Clause (1958) similarly directed Congress to deem certain carcinogenic food additives automatically unsafe, establishing a precedent for legislative — rather than agency — safety determinations in food law.