The food chemical hit list is continuing to grow both geographically, as states continue to add bans, and by impact, as the list seems to lengthen each time another state seeks passage. And with FDA newest updates to its list of chemicals “under review,” there are at least 23 substances under the gun for exclusion in foods by a state or federal regulatory body.
- California Food Safety Act (AB-418), (Passed 10/9/23). Commencing January 1, 2027, No person or entity can manufacture, sell, deliver, distribute, hold, or offer for sale, in commerce a food product for human consumption that contains brominated vegetable oil, potassium bromate, propylparaben, or red dye 3. (Up to $5,000 for a first violation; up to $10,000 each subsequent violation)
- Illinois Prohibited Food Additives (SB2637) (2nd reading 2/22/24). Beginning January 1, 2027, a person or entity shall not manufacture, sell, deliver, distribute, hold, or offer for sale a food product for human consumption that contains brominated vegetable oil, potassium bromate, propylparaben, or red dye 3. (Up to $5,000 for a first violation; up to $10,000 each subsequent violation)
- New York Bill A6424A (Amended/Re-referred to Agriculture 2/22/24).Commencing one year after the effective date, it shall be unlawful for any person, firm, association, or corporation to manufacture, compound, brew, distill, produce, process, sell, deliver, distribute, hold, offer or expose for sale any of the following substances as food additives or food color additives or any food or food product containing azodicarbonamide, brominated vegetable oil (BVO), butylated hydroxyanisole (BHA), potassium bromate, propylparaben, Red 3, and titanium dioxide. (Dairy products containing titanium dioxide are exempted.)
- FDA Select Chemicals in the Supply Chain (under review 3/4/24). The FDA updated its list of chemicals under review to include select food ingredients (including food and color additives), food contact substances, and contaminants. The list now includes information about the status of the post-market assessments, including where the agency is in the risk assessment and management process.
The FDA’s list of 21 chemicals includes all those currently facing state bans except azodicarbonamide and butylated hydroxyanisole (BHA), which are on NY’s pending bill. The review list includes some of the contaminants from initiatives such as the Closer to Zero along with those that are “of interest among stakeholders who have asked the FDA to review their safety through petitions, including citizen petitions.” FDA also plans to update the list regularly.
In all probability, the chemicals being banned by states are considered to be among those “of interest among stakeholders,” so it may be just a matter of time before azodicarbonamide and BHA are added to the review list, along with any others that states add to their own proposed/banned lists. We see this as particularly likely when one considers FDA’s proposed revocation of BVO use in foods – which nearly immediately followed California’s passage of its ban on four chemicals in foods, including BVO, as we discussed in a November 2023 Insights article.
At that point, we had some serious concerns around who is the leading authority, asking “Is it a federal agency charged with keeping current around risks in foods? Or is it a state which has significantly fewer resources and is not charged with protecting public health across the entire country?”
Although the FDA list of 21 chemicals under review is obviously longer than that of any state, it is still of note that some of the chemicals on the list are due to stakeholder interest rather than FDA research. Being responsive to stakeholder concern is not a bad thing – particularly when FDA continues to deal with resource limitations, however it does seem that a federal agency should be a bit more proactive on its own. Yet can the FDA do this? A key question is does the FDA have the resources both financially and expertise wise to undertake what is certainly a complex and detailed risk analysis which has to be done well since so much is at stake?
That said, it does seem that our November predictions are coming to fruition: FDA is certainly seeming to take a stronger stance on chemicals in foods, particularly heavy metals. And with regulations pending in Illinois and New York (and likely being concocted in other states), it behooves manufacturers to abide by the strictest regulation for all their products, rather than trying to manufacture to a patchwork of regulations among states. It’s a familiar refrain, having said the same thing with GMOs, COVID restrictions, even general food regulation prior to FSMA.
It can be quite challenging to know, understand, and implement practices that comply with all regulations of states in which your products are sold, along with all federal and foreign regulations. But you don’t have to go it alone. The TAG team has expertise in both domestic and foreign standards and regulations who can help. Give us a call!
