The Food and Drug Administration (FDA) now faces a June 30, 2026, deadline to issue a final response to a citizen petition seeking enforceable per- and polyfluorinated alkyl substances (PFAS) limits in or on certain foods. The U.S. District Court for the District of Arizona issued an order continuing an unreasonable delay lawsuit against FDA until the agency responds to the petition or June 30, 2026, whichever comes first. The litigation milestone comes amid heightened federal and state scrutiny of food chemicals, additives, labeling, PFAS, and other alleged exposure pathways, as regulators and plaintiffs continue testing new theories of food-related chemical risk and supply-chain accountability. (See previous B&D alerts here and here.)

Key Takeaways

• What Happened: On April 15, 2026, the U.S. District Court for the District of Arizona continued litigation challenging FDA’s delay in responding to a 2023 PFAS-in-food citizen petition until FDA issues a final response or June 30, 2026, whichever comes first. The order also requires the parties to submit a joint status report within 14 days of FDA’s response or by July 14, 2026.
• Who’s Impacted: Food and beverage manufacturers; agricultural producers; seafood, dairy, and egg suppliers; and ingredient suppliers, packagers, distributors, importers, and retailers whose products or supply chains could be implicated by PFAS-related FDA action.
• What Should You Do: Monitor FDA’s response, review available PFAS-related testing and supplier information, assess potential supply-chain vulnerabilities, and be prepared to engage if FDA denies the petition, initiates rulemaking, or seeks additional data.

The Citizen Petition

In November 2023, the Tucson Environmental Justice Task Force and other petitioners filed a citizen petition asking FDA to establish temporary tolerances for certain PFAS in or on various foods, including fruits, vegetables, milk, eggs, fish, and bread. The petition requests tolerances at the method detection limit for either 26 or 30 PFAS and asks FDA to treat those limits as enforceable regulatory thresholds rather than nonbinding action levels. The petition does not include Teflon, also known as polytetrafluoroethylene or PTFE, among the substances for which tolerances are requested.

The petitioners sued FDA on January 24, 2025, under the Administrative Procedure Act (APA) and the Federal Food, Drug, and Cosmetic Act (FFDCA), alleging that FDA unreasonably delayed action on the petition beyond the 180-day response period in FDA’s citizen petition regulations. See Tucson Environmental Justice Task Force v. FDA, No. 4:25-cv-00035-JAS (D. Ariz.).

The Court’s Order

On April 15, 2026, the court granted FDA’s motion to continue proceedings. The order provides that the case is continued until FDA issues a final response to the citizen petition, Docket No. FDA-2023-P-4826-0001, or until June 30, 2026, whichever occurs first. The parties must file a joint status report within 14 days of FDA’s final response, or by July 14, 2026, proposing next steps in the litigation.

The order does not require FDA to grant the petition or establish PFAS tolerances in food. Rather, it creates a procedural deadline for FDA to issue a final response. FDA could grant the petition, deny it, grant it in part, deny it in part, or take another final agency action explaining how the agency intends to address the issues raised.

Why It Matters

For industry, the difference between tolerances and action levels matters. A tolerance is an enforceable regulatory limit. Food exceeding an applicable tolerance could be deemed unsafe or adulterated. By contrast, FDA action levels generally operate as nonbinding enforcement guidance, although they can still have significant practical consequences for product specifications, supplier requirements, recalls, import decisions, and commercial contracts.

If FDA grants the petition in whole or in part, the agency may need to consider rulemaking or another process for establishing PFAS tolerances for specific foods. If FDA denies the petition, litigation will likely resume, and petitioners may challenge the denial as arbitrary and capricious or contrary to the FFDCA. Either path would keep PFAS in food squarely in the spotlight.

Other PFAS Approvals Being Challenged

Fluorinated Polyethylene

In 2022, FDA issued a request for information on the current food-contact uses of fluorinated polyethylene containers and articles. FDA sought scientific data on current uses, potential dietary exposure, and safety information on substances, including PFAS, that may migrate from fluorinated polyethylene food containers. FDA explained that fluorination of polyethylene may result in PFAS formation. The request followed EPA testing that found perfluorooctanoic acid (PFOA) migration from fluorinated polyethylene containers used to hold pesticides, as well as FDA’s concern that fluorination processes not authorized for food-contact use might be used in food-contact articles.

FDA authorized fluorinated polyethylene for general food-contact use in 1983 under 21 C.F.R. § 177.1615. In 2024, FDA announced the filing of a food additive petition asking FDA to amend its food additive regulations to remove the authorization for fluorinated polyethylene. The petitioners assert that fluorinated polyethylene manufactured under § 177.1615 can produce PFAS that may migrate to food and therefore is not safe. FDA’s petition inventory currently lists the petition as under review.

Next Steps

If FDA sets PFAS limits or establishes temporary tolerances for food, the decision could significantly affect farmers, packagers, manufacturers, seafood suppliers, food processors, distributors, importers, retailers, and others across the food supply chain. New regulatory thresholds could affect testing expectations, supplier specifications, product disposition decisions, import review, recalls, and commercial contracting.

Stakeholders should monitor FDA’s response closely, including whether FDA:

• Relies on existing PFAS testing data, seeks additional data, or opens a broader public process.
• Distinguishes among potential PFAS sources, including environmental contamination, processing water, food-contact materials, packaging, or other pathways.
• Favors enforceable tolerances, nonbinding action levels, guidance, additional monitoring, or denial of the petition.
• Addresses how any PFAS limits would apply across food categories and supply-chain roles.
• Prompts additional litigation by petitioners or other NGOs if FDA denies or narrows the requested relief.
• Influences state PFAS or food-chemical initiatives, particularly if FDA delays action or declines to set enforceable limits.

Companies should also be prepared to submit technical, scientific, operational, or economic information if FDA opens a docket, requests comment, or begins rulemaking.

Beveridge & Diamond’s Food, Beverage, Chemicals Regulation, and Consumer Products practices provide strategic, business-focused counsel to companies navigating complex and evolving regulatory landscapes. We help clients in the food, beverage, chemicals, and consumer products industries — or whose products are subject to related regulations — understand and comply with FDA requirements; EPA chemical regulations under TSCA; pesticide and biotechnology statutes; environmental, health, and safety obligations; state chemical restrictions; and voluntary product stewardship measures. Our team advises U.S. and multinational companies across the full product lifecycle, from development and manufacturing to distribution, transportation, and sale, including through tools such as our subscription service that tracks PFAS developments nationwide. For more information, please contact the authors.