Food Safety: Prepare Now for State Restrictions on Ingredients

June 6, 2024
Efforts are underway to create a patchwork of state-specific restrictions on ingredients used in food and beverage products. Manufacturers need to be prepared to navigate these new requirements.

By Sam Jockel and Ashley Yull of Alston & Bird

States are taking actions that will require food & beverage companies to eliminate certain ingredients from their products or to cease manufacturing or distributing those products in the state. California became the first state to do so with the Oct. 7, 2023, passage of the California Food Safety Act.

Effective Jan. 1, 2027, California will ban the manufacturing, selling, delivering, distributing, holding or offering for sale of food or beverage products in the state that contain brominated vegetable oil, potassium bromate, propylparaben, or red No. 3. The law authorizes the state to impose civil penalties on those who violate it.

While some consumer protection groups touted the passage of the California Food Safety Act as an important step in ensuring the safety of food & beverage products, others questioned the scientific basis underlying the decisions to ban these ingredients on safety grounds.

Concerns were also raised that this type of state-specific ingredient ban would disrupt the existing food regulatory system — leading to states now policing food additives that have historically been under the authority of the FDA and USDA — and that costs of complying with the ban would be passed along to consumers through increased costs for food and beverage products.

California seems to have inspired other states to undertake similar legislative efforts. Comparable bills have been introduced in Illinois, Maryland, Missouri, New Jersey, Rhode Island, South Dakota and Washington.

Some states have introduced legislation to ban additional ingredients from being used in food & beverage products. For example, in addition to the ingredients disallowed by the California bill, a New York bill would ban titanium dioxide (an ingredient that was removed from the California Food Safety Act), azodicarbonamide and butylated hydroxyanisole. One Pennsylvania bill would ban potassium bromate, brominated vegetable oil and beta hydroxy acids; a companion bill would ban the following dyes: red No. 3, red No. 40, yellow No. 5, yellow No. 6, blue No. 1, and blue No. 2.

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.

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