California has also continued to act in this space. Subsequent legislation was introduced to ban the use of certain ingredients in food and beverage products used by public schools in the state, including blue No. 1, blue No. 2, green No. 3, red No. 40, yellow No. 5, yellow No. 6 and titanium dioxide.
Federal action
The FDA is typically slower to ban ingredients that have been in use than the state legislatures proposing these bills. It remains to be seen whether the state action will prompt the FDA to ban some or all the ingredients that are being targeted at the state levels.
Many of the substances targeted by these state-level bans are currently under review by the FDA, including red No. 3, titanium dioxide, brominated vegetable oil, potassium bromate and propylparaben. James Jones, Deputy Commissioner for Human Foods, acknowledged the California ban, stating the FDA aims to reassess the chemical safety of food additives.
We advise companies to prepare for increased oversight of ingredients used in food and beverage products at the state level, as well as the existing state requirements for packaging materials for food and beverage products, by taking the following actions:
- Begin reformulating existing food and beverage products for the California market to comply with the California Food Safety Act.
- If developing a new product, closely consider the ingredients and packaging materials used against the backdrop of the proposed and enacted state legislation.
- Continue to stay apprised of developments on food additive and packaging material restrictions because the regulatory landscape is changing.
Sam Jockel is a partner in Alston & Bird’s (www.alston.com) Litigation & Trial Practice Group and a member of the firm’s Food & Beverage Industry team, bringing an insider perspective to regulatory and compliance issues from his experience at both the FDA and USDA.
Ashley Yull is a senior associate on the same team, concentrating her practice on complex food and beverage compliance and enforcement issues.