The Emerging Contaminant that Lies Ahead
For food and agriculture, the problem of plastics in food and the environment pose special challenges. Research into what effects these food contaminants might have on human health is just getting underway. This research will lead to cases filed by the plaintiffs’ bar, as well as increasing the attention of state and federal environmental and food safety regulators. The steady increase in microplastics detection and their ever-present levels in the world’s oceans, biota, and drinking water means that people everywhere will have to address these risks. The parallels, in terms of ubiquity and uncertainty of health safety, are striking with the emerging per-and polyfluoroalkyl substances (PFAS) debacle that has triggered headlines and increasing litigation and regulation.
Microplastic: What Does It Mean?
The word “plastic” includes various synthetic compounds, generally derived from petroleum. While there is no universal definition of microplastics, most definitions focus on size under 5 millimeters (.2 inch) in length occurring in the environment as a consequence of plastic pollution.” Kara Rogers, “Microplastics,” Encyclopedia Britannica (Sept. 8, 2020).
Researchers have also defined a lower bound of one nanometer (there are one million nanometers in just one millimeter: how’s that for small?)—with microplastics smaller than that being considered nanoplastics. Andrew J. Scholz et al., Microplastics: The Looming Challenges, Pitfalls, and Uncertainties Facing the Regulated Community and Beyond, 63 For the Defense 36–40 (June 2021). As for their formation, “microplastics can come from the breakdown of plastic objects, car tires, and polyester clothing,” as well as from originally manufactured products such as microbeads found in cosmetics, personal care products, and cleaning scrubs. A. Dick Vethaak, and Juliette Legler, Microplastics and Human Health, 371 Science, 672–74 (2021).
Because microplastics are small and often the weathered remnants of their original product, it can be extremely difficult to trace them back to their source. Still, it is useful to try to trace plastics back to their original products by examining their size, color, and shape. Agricultural runoff may incorporate microplastics degraded from greenhouse films, plastic mulch, irrigation systems, seed bags, and planters. Other sources include industrial spills and runoff from industrial processes, leaking vehicles, yards, recycling facilities, and landfills.
In 2019, the world’s production of plastics totaled approximately 368 million metric tons, with China standing out as the largest plastics producer in the world. Ian Tiseo, Global Plastic Production 1950–2019, Statistica (2021). While China is the world’s largest manufacturer of plastics, the United States is the largest generator of plastic waste, producing approximately 42 metric tons in 2016. Kara Lavender Law et al., The United States’ Contribution of Plastic Waste to Land and Ocean, 6 Science Advances, (Oct. 2020).
It’s estimated that 10 million metric tons of plastic end up annually in the oceans, where marine animals consume them. Indeed, plastic waste is now found on beaches in the most remote places on Earth.
Duel Potential Concerns: Environmental and Toxic Tort
Microplastics present the dual concerns of environmental cleanup and remedial considerations, as well as the specter of potential human health effects that could lead to future toxic tort exposure. Rumblings that microplastics may be the next mass tort litigation may seem a bit premature, but environmental litigation is already afoot using traditional common law theories of public nuisance and violations under federal statutes. Douglas A. Henderson et al., INSIGHT: Is Plastics Litigation the Next Public Nuisance?, Bloomberg Law (April 23, 2020), https://news.bloomberglaw.com/environment-and-energy/insight-is-plastics-litigation-the-next-public-nuisance (suits involving marine animals).
As far as human health issues, recent attention has focused on potential human exposure to microplastics, primarily via ingestion. Notably, the long-term effects of microplastic ingestion are not well understood yet. In September 2019, the World Health Organization stated that microplastics, “don’t appear to pose a health risk at current levels,” but cautioned that the available information was limited, and more research was needed to determine how microplastics affected human health.
Regardless of whether the finding is accurate based on the study, the effect of such ingestion of microplastics remains an open question, given the lack of toxicological and epidemiological research. This parallels the lack of understanding with health effects of low doses of PFAS.
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Published in the American Bar Association website July 29,2022 by Mark McDaniel & Thomas Redick