Microplastics Contaminating Our Food: Where is the Regulation?

By: Zachary Gili, JHBL Staffer

   Longstanding issues of food and water contamination in the United States led to the creation of the Food and Drug Administration (hereinafter FDA), United States Department of Agriculture (hereinafter USDA), and Environmental Protection Agency (hereinafter EPA).[1]  Recent discoveries of microplastics in our food and water have spurred renewed scrutiny of the government’s role in curtailing these contaminants.[2]  While the FDA monitors microplastics in food products and packaging, they only act if these materials are deemed a risk to public health.[3]  Determinants of public health risk can be due to either the quantity or the type of plastic used.[4]  The USDA and EPA have no regulations pertaining to microplastics in food or water.  Few studies have been conducted exploring what effects these contaminants can have on the health of those who unwittingly consume them.[5]  The FDA, relying on the lack of research showing the effect of plastic contaminants on health, states that “current scientific evidence does not demonstrate that levels of microplastics or nanoplastics detected in food pose a risk to human health.”[6]

   Scientific studies exist that link microplastic exposure to numerous health impacts in humans, from immune response delay to DNA damage and organ dysfunction.[7]  Despite the FDA pointing to a lack of scientific evidence that microplastics in food can cause such ailments, recent studies have concluded that microplastic presence in food has deleterious effects on health.[8]  Growing public concern has sparked demands for regulating the introduction of microplastics into the food supply.[9]  Reducing the amount of microplastics that are consumed is not only a regulatory duty of the FDA, EPA, and USDA, it is their responsibility to the citizens of America.[10]

Negative Health Implications of Consuming Microplastics

            New cases of cancer, especially among young adults, have been rising in recent years.[11]  New studies suggest that ingesting microplastics may increase the risk of developing cancer, which is particularly important because the amount of microplastics in the marketplace has increased over the last two decades.[12]  A 2022 study linking microplastics to cancer found that microplastics enter the food chain as plastics gradually breakdown.[13]  The small nanoplastics are difficult to detect and contaminate food.[14]  Microplastic exposure via inhalation, ingestion, and dermal exposure-response can cause various health issues: genotoxicity, cell division and viability, cytotoxicity, oxidative stress induction, metabolism disruption, DNA damage, inflammation, and immunological responses.[15]  A 2023 study found that once ingested, microplastics accumulate over time and pass to various organs through blood circulation.[16]  These studies represent only a fraction of the research confirming the negative health implications of consuming microplastics.

            Current Regulatory Practices Enable the Consumption of Microplastics

            The FDA, EPA, and USDA are lax in their development of policies to stem the tide of microplastics into our food chain.[17]  The FDA does not authorize the use of microplastics and nanoplastics as an ingredient in foods, and the FDA analyzes testing data regarding migration of microplastics and nanoplastics to food from the containers they arrive in.[18] However, the FDA has not developed explicit policies that implement more rigid testing and stricter guidelines to prevent microplastics from entering the food chain.[19]  The EPA and USDA do not conduct any regulation of microplastics in water, either for commercial use, like on farms, or residential use.[20]  The FDA does acknowledge the presence of microplastics and nanoplastics in tap and bottled water, but deems the levels pose no risk to human health.[21]  This water is permitted for use on farms to irrigate crops and provide drinking water for cattle, further contaminating the food chain.

The USDA and FDA also authorize the practice of garbage feeding when feeding animals that will produce food and food products for human consumption.[22]  Garbage feeding has been shown to produce feed for animals that overwhelmingly contains plastic, an unavoidable consequence of mass-producing animal feed from discarded food meant for humans.[23]  The animal feed is often contaminated due to inadequate removal of plastic packaging in industrialized settings.[24]  The surge in microplastic contamination in our cattle can be linked to practices such as garbage feeding, but more worryingly is also linked to the water that livestock consume and even the air they breathe.[25]  While the USDA is responsible for meat and poultry regulation, the FDA regulates what these livestock are allowed to ingest.[26]  Lack of regulation preventing garbage feeding increases the likelihood that humans consume microplastics.

Regulatory Measures to Limit Microplastic Contamination

            Strict regulations are needed to decrease the influx of microplastics into the food that most Americans consume.[27]  Common practices that are banned in most states, like garbage feeding, need to be prohibited outright in order to reduce the amount of microplastics in our livestock.[28]  To combat the water contamination which affects both humans and cattle, the FDA, EPA, and USDA should either strictly regulate water used for consumption and agricultural development, or mandate different filters to be used by water suppliers, such as towns and agricultural developers.[29] This would help to combat the contamination of soil as well, which can reduce the amount of microplastics that make it into produce and livestock.[30]  Without these regulations in place, it is difficult to stymy the introduction of microplastics into water, and ultimately our food chain.[31]

The FDA could also increase regulation of microplastics by reducing the threshold of what is “acceptable” for microplastic levels in our food is, and testing products more frequently.  Targeted regulations of various types of plastic products, such as packaging containers, decomposing plastic materials, and even personal hygiene products, could prevent microplastics from contaminating food and the environment.[32]  Individual states have begun to limit single use plastics, like plastic bags, in an effort to combat plastic waste from making its way into the environment.[33]  A recent study has shown this to dramatically diminish plastic bag waste, with Austin, Texas, experiencing a 90% reduction in plastic bag litter in the six months after the law was enacted.[34]  While plastic bags are not the end all to be all of the microplastic contamination issue, they represent one small part of the problem that was tackled in some states with proper regulations.[35]  This is something that the FDA could emulate as it is within their authority to regulate plastics used in food contact.

            In contrast to current lack of regulations in the United States, the United Nations Environment Assembly has set a goal to finalize negotiations among member countries to reduce plastic waste.[36]  Pressure from organizations like the United Nations can encourage the US to take action to reduce plastic waste and ultimately keep food free of microplastics.[37]  Without improved regulations, the United States is poised to contribute to a global tripling of plastic waste by 2060, which could have catastrophic implications for food safety and public health.[38]  If the United States implements strict regulations in light of emerging research on the dangers of microplastics, serious public health risks could be averted.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.  

Zachary is a third-year evening law student at Suffolk University Law School with interests in Energy and Infrastructure Law, Corporate Law, and Litigation. He received his Bachelor’s Degree in Business Administration from Worcester State University in 2021.

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[1] See 21 U.S.C. § 1 (1906); see also 21 U.S.C. § 9 (1936).  The formation of the FDA was due to many food borne illnesses and diseases that were prevalent in the early industrial era, and it’s goal was to eliminate these contaminants to provide a safer marketplace for food in America. 21 U.S.C. § 1 (1906).

[2] See Maya Rommwatt, Why Is the FDA Downplaying the Risk of Microplastics From Food Packaging?, Common Dreams (Sep. 11, 2024, 2:18 PM), https://www.commondreams.org/opinion/fda-microplastics-food [https://perma.cc/SFJ8-6HFQ] (expressing desire for FDA to regulate microplastics).

[3] See Microplastics and Nanoplastics in Foods, U.S. Food & Drug Admin. (July 24, 2024), https://www.fda.gov/food/environmental-contaminants-food/microplastics-and-nanoplastics-foods [https://perma.cc/LY69-YD6G].

[4] See id.

[5] See id.; see also Gregory M. Zarus et al., A review of data for quantifying human exposures to micro and nanoplastics and potential health risks, Sci. of The Total Env’t (Feb. 20, 2021), https://www.sciencedirect.com/science/article/abs/pii/S0048969720375410 [https://perma.cc/9ZVC-5HQW] (describing impact of microplastics on health when ingested).

[6] See Peter N. Coneski & Natalie E. Rainer, FDA Weighs in on Microplastics and Nanoplastics in Food, K&L Gates (July 25, 2024), https://www.klgates.com/FDA-Weighs-In-on-Microplastics-and-Nanoplastics-in-Food-7-25-2024 [https://perma.cc/CT49-94Z9].

[7] See Yue Li et al., Potential Health Impact of Microplastics: A Review of Environmental Distribution, Human Exposure, and Toxic Effects, 1 Env’t & Health 249, (Aug. 10, 2023), https://pubs.acs.org/doi/10.1021/envhealth.3c00052#) [https://perma.cc/P3HH-MEBN]; see also Yongjin Lee et al., Health Effects of Microplastic Exposures: Current Issues and Perspectives in South Korea, 64 Yonsei Med. J. 301, (Apr. 23, 2023),https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10151227/ [https://perma.cc/9E5J-UY6K].

[8] See Li, supra note 7.

[9] See Kevin Loria, How to Eat Less Plastic, Consumer Reps. (Apr. 30, 2020), https://www.consumerreports.org/health/health-wellness/how-to-eat-less-plastic-microplastics-in-food-water-a8899165110/ [https://perma.cc/7ERU-WRF9].

[10] See U.S. Food & Drug Admin., supra note 3.

[11] See Kathy Katella, What to Know About Rising Rates of ‘Early-Onset’ Cancer, Yale Med. (Aug 1, 2024), https://www.yalemedicine.org/news/early-onset-cancer-in-younger-people-on-the-rise [https://perma.cc/7SJS-2NL2].

[12] See Laura López González, I’m a Microplastics Researcher. Here’s How To Limit Their Dangers, Univ. Cal. S. F. (Feb. 27, 2024), https://www.ucsf.edu/news/2024/02/427161/how-to-limit-microplastics-dangers [https://perma.cc/YF7Z-YB9X]; see also Stephanie Dutchen, Microplastics Everywhere, Harv. Med. (2023), https://magazine.hms.harvard.edu/articles/microplastics-everywhere [https://perma.cc/SLZ8-8F2F] (exploring increase in microplastics in environment).

[13] See Rakesh Kumar et al., Micro(nano)plastics pollution and human health: How plastics can induce carcinogenesis to humans?,Chemosphere (July, 2022) sciencedirect.com/science/article/abs/pii/S0045653522007603 [https://perma.cc/HQ3L-MEFQ].

[14] See id.

[15] See id.

[16] See Gurusamy Kutralam-Muniasamy et al., Microplastic diagnostics in humans: “The 3Ps” Progress, problems, and prospects, Sci. Total Env’t (Jan. 15, 2023), https://www.sciencedirect.com/science/article/abs/pii/S0048969722062635?via%3Dihub [https://perma.cc/Q23M-S96N].

[17] See U.S. Food & Drug Admin., supra note 3.  The FDA deems the levels of microplastics currently found in food to be at safe levels, and only acts if those levels are found to be unsafe.  Id; see also Aliza R. Karetnick et al., From Particles to Policy: Microplastics at the Crossroads of Regulation and Litigation, Morgan Lewis (Mar. 25 2024) https://www.morganlewis.com/blogs/welldone/2024/03/from-particles-to-policy-microplastics-at-the-crossroads-of-regulation-and-litigation [https://perma.cc/Z5BA-ZY6S] (discussing lack of regulation by EPA).

[18] See U.S. Food & Drug Admin., supra note 3.

[19] See Karetnic et al., supra note 17; see also 21 U.S.C. §§ 321-71.  The FDA has yet to declare microplastics as “unavoidable contaminants” in the food chain.  See 21 U.S.C. §§ 321-71.

[20] See Karetnick et al., supra note 17.

[21] See U.S. Food & Drug Admin supra note 3.

[22] See Human Food By-Products For Use As Animal Food, U.S. Food & Drug Admin. (Aug. 2016) https://www.fda.gov/files/animal%20&%20veterinary/published/CVM-GFI–239-Human-Food-By-Products-For-Use-As-Animal-Food.pdf [https://perma.cc/TRJ7-YH8T].

[23] See Harriet Grant, Legal plastic content in animal feed could harm human health, experts warn, Guardian (Dec. 15, 2018) https://www.theguardian.com/environment/2018/dec/15/legal-plastic-content-in-animal-feed-could-harm-human-health-experts-warn [https://perma.cc/UKG5-LJUS] (describing feed with plastic found within due to “garbage feeding”); see also Around 80% of cow and pig meat, blood and milk contains plastic, Plastic Soup Found., (July 8, 2022) https://www.plasticsoupfoundation.org/en/2022/07/80-of-cow-and-pig-meat-blood-and-milk-contains-plastic/ [https://perma.cc/S94D-6UWR] (summarizing how most samples of feed pellets in other countries have plastic found in them).

[24] See Grant, supra note 23.

[25] See I. van der Veen et al., Plastic Particles in Livestock Feed, Milk, Meat and Blood, Vrije Universiteit Amsterdam Dept. Env’t & Health 5 (Apr. 29, 2022), https://www.plasticsoupfoundation.org/wp-content/uploads/2022/07/Final-Report-pilot-study-plastic-particles-in-livestock-feed-milk-meat-and-blood-SIGNED-1.pdf [https://perma.cc/5ER6-PUY8].

[26] See Animal Food Regulations, U.S. Food & Drug Admin. (Dec. 1, 2023), https://www.fda.gov/animal-veterinary/animal-health-literacy/animal-food-regulations [https://perma.cc/P6XB-2BQP] (reviewing FDA role in regulation of animal feed).

[27] See Rommwatt, supra note 2.

[28] See van der Veen, et al. supra note 25, at 6.; see also U.S. Dep’t Agric., Fact Sheet: What Swine Growers Need to Know about Garbage Feeding 2 (2019) (summarizing states with garbage feeding bans).  Currently, twenty-three of the fifty states outright ban the practice of garbage feeding livestock.  U.S. DEP’T AGRIC., supra.

[29] See Louis Sokolow et al., Plastic Bag Bans Work, Env’t Am. Rsch. & Pol’y Ctr. 10-12 (Jan. 2024) https://publicinterestnetwork.org/wp-content/uploads/2024/01/Plastic-Bag-Bans-Work-January-2024.pdf [https://perma.cc/UZ4A-YAE3].

[30] See Rommwatt supra note 2 (suggesting microplastics contaminate soil); see also U.S. Food & Drug Admin., supra note 3 (explaining that microplastics found in tap water); see also Li et al., supra note 7 at 250 (discussing microplastics have contaminated soil, especially in agricultural systems).  The contamination of soil is widely problematic because once in the soil, microplastics can move through the water transportation system of produce, effectively contaminating the entirety of the plant.  Li et al., supra note 7 at 250.  The article notes that microplastics are introduced through not only water, but sewage sludge, compost, and plastic mulching.  Id.

[31] See Rommwatt, supra note 2.

[32] See Lee et al., supra note 7, at 10-12 (exploring types of ways humans acquire exposure to microplastics).  These are a few of the ways that microplastics make it into our environment, such as microplastics getting into our water from personal hygiene products, packaging containers that directly impact our food itself, and decomposing plastic that breaks down and escapes into sewage or soil.  Id.

[33] See Paige Bennet, Plastic bag bans in the US reduced plastic bag use by billions, study finds, World Econ. F. (Jan 25, 2024). https://www.weforum.org/agenda/2024/01/plastic-bag-bans-reduce-waste/ [https://perma.cc/3XUB-EHDU] (discussing various municipalities with legislation banning plastic bag use).

[34] See Sokolow et al., supra note 29 at 10-12.

[35] See id.

[36] See Cong. Rsch. Serv., International Agreement on Plastic Pollution: Negotiations, (June 17, 2024), https://crsreports.congress.gov/product/pdf/IF/IF12690 [https://perma.cc/9NLY-6DUY].

[37] See id.

[38] See id.