States revolt over food additives

Why a new bill in Illinois to ban five controversial food-additives is a national story – and a classic tale of the feds vs. the states.


A pile of red bags of Skittles, pictured up close.

Kiev, Ukraine - September 27, 2017: Skittles multicolored fruit candies packages background. Skittles is a brand of fruit-flavoured sweets, currently produced and marketed by the Wrigley Company

Happy Friday, and welcome to Food Fix! If you’re new here: I’m Helena Bottemiller Evich and I’ve been covering food policy in Washington for nearly 15 years, most recently at Politico as a senior reporter. I launched Food Fix in 2022 to be the go-to read on all things food policy. I’m glad you’re here!

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Helena

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States revolt over food additives

Lawmakers in Illinois introduced a bill this week to ban a handful of controversial food additives – the latest skirmish in a brewing fight between the states and the feds over what’s allowed in the U.S. food supply.

Illinois pols are aiming to go even further than California’s recent first-in-the-nation ban on four additives: brominated vegetable oil or BVO, potassium bromate, propylparaben and Red Dye No. 3, which have all been linked to health problems. Illinois wants to add a fifth to the list: titanium dioxide, a whitening and brightening agent used in a wide range of products, from dressings to candies. (California dropped titanium dioxide in a compromise to pass the legislation.) 

The Illinois bill also calls for a local university or other research institution to study the health risks associated with two commonly-used preservatives BHA and BHT and subject them to additional regulation “if it is determined they pose a significant health risk,” per the lawmakers.

Why watch Illinois? It seems fairly likely that Illinois will pass this bill given that Democrats have the governorship and a supermajority on both sides of the state legislature. A ban by two of the nation’s six most populous states would amount to a de facto national ban on these ingredients. Why? It’s simply too complicated and too costly for food manufacturers to reformulate and separately label thousands of products for specific states.

In a way, it means the states are wresting control of food additive regulation from the feds. 

And it’s not just Illinois and California. There’s a similar bill under consideration in New York. Bills were also recently introduced in Missouri and South Dakota. Other states are expected to follow. I’m watching Minnesota and Pennsylvania, in particular. 

Zooming out: All of the chemicals targeted by these bills have already been banned or extremely limited by the European Union and many other countries. The flurry of state actions certainly creates a complicated landscape for U.S. food companies, though many of the big, international brands are already selling the exact same products abroad without these additives. Skittles in Europe, for example, don’t contain titanium dioxide. 

Domino effect: I caught up with Illinois Secretary of State Alexi Giannoulias who announced the bill this week with state Sen. Willie Preston and state Rep. Anne Stava-Murray, all Democrats. If you’re wondering why a secretary of state is involved in this issue – I was! – in Illinois, this department oversees the DMV as well as the state’s organ donation program. Giannoulias said the state’s program is facing both increased demand for organ transplants and also fewer healthy organs from donors. “I feel like it’s our responsibility to help keep donor organs healthy,” he told me.

“If we get it done in Illinois, I think the dominoes are going to fall,” Giannoulias said, of the food additives bill. “I think people are paying attention. FDA is paying attention. Other states are paying attention. At a certain point, this becomes inevitable.”

Pressure on FDA: These state bans pressure FDA to play a more active role in regulating food chemicals. Consumer advocates have long complained that the agency is far too lax in allowing additives to get to market and then extremely slow to react to safety concerns about chemicals already in use. This laissez faire approach has created an opening for states to take things into their own hands. 

“The FDA has failed miserably on these additives,” said Giannoulias. “Ideally they would act, especially as a result of Europe and the rest of the world moving toward a cleaner, healthier food supply. Sadly, the FDA has refused to do so for decades. I think the states have no choice … In a perfect world, we wouldn’t have this conversation, I wouldn’t be calling senators at 10 o’clock at night. FDA would have already moved on this.”

FDA is working on it: Back in November, after California passed its additives ban into law, FDA announced it was in the process of re-reviewing the safety of some of the ingredients the state had just banned. The agency proposed pulling brominated vegetable oil (BVO) from the market and is now also reviewing Red Dye No. 3 under what’s known as the Delaney Clause, which requires the feds to ban additives that have been found to cause or induce cancer in humans or animals in testing. Consumer advocates are quick to point out, however, that the FDA has had decades to take action on some of these substances. The agency actually banned Red Dye No. 3 from cosmetics – but not food – in 1990 due to cancer concerns.

“I think there’s a heightened attention at FDA,” said Brian Sylvester, a partner at Perkins Coie here in Washington, who advises food companies on a range of regulatory issues. The state bills are “going to help the agency to take action more quickly – what that action looks like remains to be seen.”

A spokesperson for FDA said the agency “prioritizes its review of chemicals in food based on risk, science, and regulatory authority. The agency is continuously reviewing and reassessing the safety of a variety of chemicals in food to ensure the science and the law support their safe use in food.”

The spokesperson added the FDA’s proposed reorganization of its foods program will help the agency “develop a faster and more nimble process for evaluating chemicals in the food supply.”

Candy looks to the feds: The National Confectioners Association (NCA), which represents candy makers, has been leading the charge against the state bans, arguing that these decisions must be made at the federal level.

“This is a complete overstep by legislators who are out of their depth when it comes to our nation’s science-based food safety system,” said Christopher Gindlesperger, senior vice president of public affairs and communications at NCA, of the Illinois bill. “We should rely on the scientific rigor of FDA in terms of evaluating the safety of food ingredients and additives, not state legislatures.”

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What I’m reading

‘Climate-friendly’ meat may not sell in Europe, literally (Sentient Media). “Misleading and unsubstantiated environmental claims that include suggestions of happy cows, chickens or pigs on food and other consumer products could be banned in the European Union under a new law,” writes Sophie Kevany. “The new rules are aimed at ending the use of unsubstantiated environmental claims like green, net zero, climate neutral, carbon neutral or eco-friendly on any consumer product  – including meat, eggs and dairy – but empty welfare claims could be a target too. The rules, passed last week by EU lawmakers, are expected to take effect sometime in 2026 or later in some countries.”

Fight brewing over Biden climate funds that help farmers in Republican-leaning states (Reuters). “An effort by Republican U.S. lawmakers to reallocate $18 billion in climate-friendly agriculture funding under President Joe Biden‘s signature climate law would shift money away from programs that primarily benefit farmers in Republican-leaning states, a Reuters analysis found,” reports Leah Douglas. “The Inflation Reduction Act money, earmarked for U.S. Department of Agriculture-designated ‘climate-smart’ farm practices, is intended to support Biden’s agriculture climate agenda, which relies heavily on storing carbon in the soil and lowering emissions through sustainable farming techniques.”

Hemp groups request House Energy and Commerce Committee hearing (Natural Products Insider). “Twenty-eight non-profit organizations on Wednesday urged leaders of the House Energy and Commerce Committee to hold a hearing regarding the purported failure of the Food and Drug Administration to regulate the hemp market, including CBD,” reports Josh Long. “The groups that signed a letter addressed to Reps. Cathy McMorris Rodgers (R-Wash.) and Frank Pallone (D-N.J.) include organizations with members in the dietary supplement industry, including the American Herbal Products Association (AHPA), Consumer Healthcare Products Association (CHPA) and Council for Responsible Nutrition (CRN).”

The murky campaign to discredit lab-grown meat (WIRED). “A new public information campaign against cultivated – or ‘lab-grown’ – meat is being run by a group with close links to a controversial public relations firm,” reports Matt Reynolds. “The group has launched TV adverts and a website purportedly to educate the public about cultivated meat, but its approach – which draws on a PR playbook previously used to discredit the plant-based meat industry – has been criticized by supporters of the cultivated meat industry who claim these campaigns are deceptive and unscientific. The campaign was launched in 2023 by the Center for the Environment and Welfare (CEW) – a group led by executive director Jack Hubbard, who is also a partner at public relations firm Berman and Company, which has a long history of supporting nonprofits that defend the interests of the food and drink industry.”

Consumers are unsure what processed foods are, but seek to avoid them, IFIC reports (Food Navigator). “American consumers say they are cutting out processed foods from their diet, despite many not fully understanding what they are, Alyssa Pike, senior manager of nutrition communications at the International Food Information Council (IFIC), shared during a recent webinar,” writes Ryan Daily. “Most Americans can’t fully explain what processed foods are, despite previously saying they are looking to limit them. Nearly half of consumers (48%) said they knew what processed foods were but couldn’t fully explain them, and 23% didn’t think they could explain what processed foods were at all, per the 2023 IFIC Consumer Research on Processed Foods.” 

Conagra Brands launching Dolly Parton food line (Food Dive). “Conagra Brands is working with country star Dolly Parton to develop a new line of food products. The items will include frozen, refrigerated, grocery and snacks inspired by down-home comfort cuisine,” reports Christopher Doering. “The partnership expands an existing agreement struck between the music star and Conagra’s Duncan Hines brand in 2022 that focused on baking items such as cakes, frostings and brownies.”

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