The rights of states to enforce legislation that is not in sync with federal legislation is becoming increasingly controversial, particularly in relation to food dyes and additives. From the MAHA focus to a new Senate bill, an alliance of major food manufacturers, and lawsuits against states implementing ingredient regulations, groups are taking sides – and action.
This is not a new issue and initially became a problem in the days of GMO legislation being created by states, with many setting different requirements. But a trend in state legislation is now gaining momentum for dyes and additives, which began in 2023 when California passed a law banning the use of Red No. 3, brominated vegetable oil, potassium bromate, and propylparaben, then added the prohibition of foods in schools that contained Blue 1, Blue 2, Green 3, Red 40, Yellow 5, and Yellow 6. While neither ban is effective until 2027, their passage steamrolled with other states, such as West Virginia, Texas, and Louisiana, enacting laws banning specified additives in foods and/or requiring warning labels. While FDA also banned Red No. 3 earlier this year, it is still simply “initiating a process” or “working with industry” to eliminate other dyes.
While any such change and ingredient ban causes industry to reformulate or otherwise change or eliminate products, there is an industry move to side with federal legislation in a desire to prevent a patchwork of various laws by the states. As such, a number of major food and beverage companies, backed by major industry trade groups, have formed the lobbying alliance, Americans for Ingredient Transparency (AFIT), focusing on keeping standards and regulations at the federal level for dyes and additives, as well as ultra-processed foods in general.
In a similar vein, the International Association of Color Manufacturers (IACM) filed a suit in October against West Virginia over its ban on certain food dyes and additives. The lawsuit claims that the law usurps the power of the FDA, interferes with interstate commerce, and causes economic harm, “without providing any substantiated or rational basis for classifying covered products as unsafe.” The food industry has also pushed back on California’s law banning ultra-processed foods in school meals, with groups such as the Consumer Brands Association arguing that the lack of a clear definition could limit access to foods that provide valuable nutrients (e.g., whole wheat breads, flavored yogurts, etc.). The law is also expected to raise prices for schools and/or parents.
On the other side, however, are some federal actions, such as the recently introduced Better Food Disclosure Act. Focused primarily on eliminating self-affirmed GRAS, the bill also originally included a section preempting states from implementing ingredient regulations. However, due to pushback from the MAHA community, the provision was deleted in the updated bill.
Even at the federal level itself there is some controversy with the preemption of state law going against the MAHA goal to ban ingredients considered unhealthy, while a provision of the 2026 funding bill on “healthy” food labeling includes the stipulation that manufacturers are not to be directly or indirectly subjected to any related state law requirements unless they are the same as the federal requirements. Although this stipulation is specifically focused on “healthy” labeling, it sets a precedent for other potential actions.
There are arguments to be made on both sides of the controversy, with state law often able to be implemented more quickly than federal law, but the impracticality of the food industry being able to manage compliance with multiple state requirements that are all different, as we stated as TAG’s Take in last week’s article. As such, it behooves the federal government – whether Congress, MAHA or HHS – and the food industry itself to determine the true risks of dyes and other additives, set a definition for ultra-processed, and unite in an effort to truly provide America with transparently healthy food choices without causing economic harm or limiting consumer choice.
