EDF Health

Leveraging LSL replacement funding: Chicago Fed steps up

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: November 10, 2022

Tom Neltner, Senior Director, Safer Chemicals Initiative

The Federal Reserve Bank of Chicago serves Iowa and much of Illinois, Indiana, Michigan, and Wisconsin—areas of the country that likely have more LSLs than those served by any of the other 11 banks in the Federal Reserve System. Image source: Federal Reserve Bank of Chicago

What Happened: On November 2, the Federal Reserve Bank of Chicago held a meeting of more than 50 stakeholders interested in new strategies to fund and finance lead service line (LSL) replacements. I attended, representing the Lead Service Line Replacement Collaborative.

Why It Matters:

  • The meeting was an important first gathering of its type to focus on helping:
  • Lead pipes represent the most significant source of lead in drinking water. Replacing the nation’s estimated 9 million LSLs is predicted to cost $45 billion.
  • Federal funds alone will not be enough to help states and communities eliminate this lead pipe legacy, municipal water utilities need to leverage federal funds by getting the lowest rates for bonds to finance their efforts.

Our Takeaway: EDF applauds Chicago Fed for its leadership in taking on this complicated but critical issue. The meeting advanced the discussion in a way that only a neutral party like the Chicago Fed can do.

Next Steps: Within days of the convening, I am already hearing from participants interested in making connections or learning more about the issue. Chicago Fed should continue these convenings and engage more stakeholders.

Go Deeper: In February 2022, staff at the Chicago Fed began to offer a series of excellent articles, videos, and case studies to explain the issue of lead pipes to their stakeholders. We recommend this interview with Margaret Bowman, a water expert with 30 years in the nongovernmental and philanthropy sectors, as she explains the financing needs and opportunities.

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Unleaded Juice: FDA’s challenge of continuous improvement and compliance assurance

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: October 2, 2022

Tom Neltner, Senior Director, Safer Chemicals

This is the sixth in our Unleaded Juice blog series exploring how the Food and Drug Administration (FDA) sets limits for toxic elements like lead, arsenic, and cadmium in food and the implications for the agency’s Closer To Zero program. 

A core tenet of FDA’s Closer to Zero program is the “Cycle of Continuous Improvement” represented by the image below on the program’s webpage. The four-stage, outer ring represents FDA’s process for revising its action levels for food contaminants. The inner, grey ring describes the agency’s on-going monitoring, research, and compliance program.


This approach makes sense, and we fully support it. However, the success of this approach relies on FDA addressing several significant structural weaknesses.

  • Future funding is not guaranteed: In March 2022, Congress appropriated $11 million in Fiscal Year 2022 (FY22) funding for FDA’s maternal and infant health work—in part to support the agency’s efforts to reduce arsenic, lead, and cadmium in children’s foods. Last year’s request and appropriations were a significant increase over previous years, but that funding level is not guaranteed for future years.
  • Action levels are guidance—not legally binding requirements: FDA’s action levels for contaminants in food are established in guidance. The guidance introduction makes it clear that “The contents of this document do not have the force and effect of law and are not meant to bind the public in any way, unless specifically incorporated into a contract.” It assumes that the food industry—from the largest multinational corporation to the smallest entrepreneur—will comply.
  • The agency has limited means to monitor compliance: FDA largely relies on physical inspections and market sampling, supplemented by voluntary reporting, to assure compliance with action levels. Inspections at high-risk facilities must occur every three years (but likely have been delayed due to the COVID pandemic). We understand that most facilities will see an inspector once every eight years. This is particularly problematic because FDA says it lacks the authority to require food companies to provide requested documents without the physical inspection, and the agency does not require ongoing testing and reporting by companies for action levels.
  • Action levels must be consistently strong enough to drive research and impact markets: FDA correctly points to its success in setting an action level for inorganic arsenic in infant rice cereal as a model to lower contamination. Unfortunately, the model assumes the action level for a contaminant is set low enough to result in research investments and increased product and ingredient testing and to provide FDA with sufficient information to act on problems. This is not the case for lead in juice.
     
    We explore each of these weaknesses below.

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Unleaded Juice: FDA needs to start with public health—not market impact

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: September 22, 2022

Tom Neltner, Senior Director, Safer Chemicals 

This is the fifth in our Unleaded Juice blog series exploring how the Food and Drug Administration (FDA) sets limits for toxic elements like lead, arsenic, and cadmium in food and its implications for the agency’s Closer To Zero program. 

FDA’s approach to setting draft action levels for lead in juice is based on two ill-conceived presumptions:

  • Action levels should not impact more than 5% of the market. Unfortunately, FDA does not appear to consider market trends or whether the products were made using best practices shown to reduce contamination.
  • Action levels should help ensure 90% of young children have a dietary intake of lead that is below FDA’s Interim Reference Level, the maximum daily intake from food. Unfortunately, this effectively ignores the top 10% or 2.4 million of the most-exposed young children.[1]

To its credit, the agency has shown it is willing to go beyond the 5% impact for three types of juices (grape at 12%, pomegranate at 6%, and prune at 6%),[2] and it has proposed the most protective lead-in-juice standards in the world. However, for a heavy metal like lead where relatively short-term exposures can result in long-term harm to young children’s developing brains, the current approach has serious weaknesses.

We think the agency should evaluate alternatives that impact more than 5% of the market and protect more than 90% of children. And when FDA evaluates impacts, it should assess the socioeconomic benefits of the alternatives. For substances like lead (and arsenic), these societal benefits can be quantified using established methods. In a previous blog, we showed that reducing young children’s overall dietary intake of lead by just 6% would yield $1 billion a year in benefits. The agency should compare these benefits to the investments that industry would need to make to achieve these action levels using best practices.

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FDA Acknowledged Ortho-Phthalates Could Be Grouped Into Classes For Safety, Then Punted

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: September 16, 2022

Maricel Maffini, consultant and Tom Neltner, Chemicals Policy Director

In May, FDA decided to allow continued use of nine ortho-phthalates in food packaging and processing equipment but punted on deciding whether or not using those phthalates is safe. We’ve written about the petitions that resulted in the decision, along with the agency’s decision to “abandon” the use of 19 other phthalates (here, here, here, and here). We’ve also written about how phthalates that industry and FDA say are no longer on the market are showing up in our food (here and here). Today, however, we focus on whether those nine phthalates are a class of related substances—and the implications for public health if they are.

FDA’s obligation to evaluate related chemicals as a class

FDA’s regulations state that additives “that cause similar or related pharmacological effects will be regarded as a class, and in the absence of evidence to the contrary, as having additive toxic effects.” In denying our petition, FDA acknowledged that some phthalates could be in a class of related substances. For example, FDA described studies showing that seven phthalates reduced testosterone production – an effect called antiandrogenicity – during fetal development. This caused malformation of the male reproductive system (primarily malformed genitals in male infants). The agency balked at declaring all phthalates anti-androgenic because four of them did not show that effect.[1]

But rather than move forward with a safety assessment of the use of the antiandrogenic phthalates as a class of chemicals with similar toxicity, FDA dropped the issue, implicitly sending the message the chemicals are safe. This is contrary to the agency’s obligation. When making a final decision on a food additive petition that allows the use of a substance, FDA must explicitly decide the use is safe after considering the cumulative effect of it and related substances in the diet.[2]

In contrast to FDA’s failure to act, the Consumer Product Safety Commission, responding to safety concerns, took action five years earlier and banned use of antiandrogenic phthalates in children’s products.

A phthalate scorecard: Where we stand on which phthalates can be used and their health effects

The table below provides a scorecard for the nine phthalates that remain in use. Of those substances, studies showed that seven were associated with developmental effects, including four which have antiandrogenic effects. Two phthalates were never studied for developmental effects.

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Consumers continue to rate chemicals in food as top food safety concern

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: September 14, 2022

Tom Neltner, Senior Director, Safer Chemicals

For the eighth year in a row, consumers rated chemicals as their top food safety concern according to the annual industry survey of consumer perspectives on food issues. In the survey conducted in March 2022, 48% of consumers rated chemicals as their top category of food safety concern – about the same as 2021 – compared to 22% for foodborne illness from bacteria. The chemicals category includes: cancer-causing chemicals (15%); pesticides (13%); food additives and ingredients (11%); and heavy metals (9%).

Last year, we examined the International Food Information Council’s (IFIC) 2021 Food and Health Survey in detail. Our takeaway was that consumers continue to be concerned about chemicals in food, partly because they lack confidence that the federal government is actually ensuring additives—like artificial sweeteners—are safe. (Nearly 70% didn’t know that’s the government’s role).

As a result, consumers do their best to protect their health and safety by avoiding ingredients that sound like chemicals—the only way they see to control the perceived risk. In reaction to consumer concerns, some food companies have undertaken “clean label” programs, which, according to a 2017 analysis by Center for Science in the Public Interest, either remove these ingredients (which can be helpful if the removed ingredients are unsafe) or use names that do not sound like chemicals (which obscures the facts and can be misleading).

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Broken GRAS: FDA must declare abandoned uses of ortho-phthalates are not GRAS.

By Tom Neltner, Senior Director, Safer Chemicals Initiative / Published: August 25, 2022

Maricel Maffini, EDF consultant and Tom Neltner, Chemicals Policy Director

This blog is the sixth in our Broken GRAS series where we explore the Food and Drug Administration’s (FDA) Generally Recognized as Safe (GRAS) voluntary notification system for novel chemicals added to food.

In May, FDA removed its approval for all uses of 19 ortho-phthalates (aka phthalates) and some uses for two more because it agreed with the industry petition claiming the uses had been abandoned. During the comment period when the petition was filed and again when the decision was published, Earthjustice, EDF, and others warned FDA that despite the removal of approvals, a company could still use any of the abandoned phthalates without the agency’s knowledge by determining on its own that the use was Generally Recognized as Safe (GRAS).

In its decision, FDA implicitly acknowledged that this could indeed happen. After explaining what a GRAS safety determination[1] entails and how its voluntary GRAS notification program[2] works, the agency said:

In the future, if a manufacturer wishes to establish safe conditions of use for one or more of these substances in food contact applications, we expect the manufacturer to submit either a food additive petition or a food contact substance notification prior to market entry because these intended uses were previously authorized under section 409 of the FD&C Act.[3]

Since the agency has no way of knowing that a company determined a substance’s use was GRAS or that it was actually in use, FDA’s expectation is little more than a hope. The agency’s own studies show that the abandoned phthalates show up in food and in food contact materials. Many other studies have shown the same thing, including one that found an unapproved phthalate in fast food.

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