California Pushes Further Restrictions on Food Additives

On March 12, 2024, California Assembly member Jesse Gabriel held a press conference to announce the advancement of a bill that would prohibit schools from serving foods containing seven color additives: Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2, Green 3, and titanium dioxide. First read on February 12, AB 2316 is moving swiftly with amendments. Next, the bill heads to the state Assembly Education Committee.

The foods that will have to be reformulated if the bill is signed into law include Frosted Flakes, Eggo Waffles, Rice Krispies Treats, and Cheez-Its, as well as other breakfast cereals, cookies, and snack foods. The school market is significant. California public schools serve nearly three million free lunches and 1.5 million free breakfasts every school day.

“As a lawmaker, as a parent, as somebody who struggled with ADHD, I find it unacceptable that we are allowing our schools to serve food with additives that are causing harm to our children,” Gabriel said. He claimed the evidence is clear, citing an independent research study commissioned by the state of California. The final report from the California Office of Environmental Health Hazard Assessment determined that the scientific literature indicates that synthetic food dyes can impact neurobehavior in some children.

Gabriel mentioned the time and resources spent on helping children who are struggling. “It is totally self-defeating, it harms our kids, and it undermines our investments when we provide them with support and therapy in the morning, and then at lunch we expose them to chemicals that undo all of that good work and exacerbate their challenges,” he continued. “We also know that when one kid in a class is struggling with behavioral issues, it doesn't just impact that student, it impacts the learning environment for all students in that classroom.”

In 2023, Gabriel led the successful effort to prohibit certain chemicals in food sold in California: brominated vegetable oil, potassium bromate, propylparaben, and Red 3. Titanium dioxide was originally on the list but was removed at the last minute because it lacked bipartisan support.

“When we introduced AB418, the California Food Safety Act, we heard from parents across the United States, from the East Coast, the West Coast, and the Midwest, asking us, pleading us, to do something about synthetic food dyes,” Gabriel added.

Following the success of AB418, other states have followed suit. Similar bills are pending in New York,  Illinois, Washington, Missouri, and South Dakota. State Senator Willie Preston, who introduced the bill in Illinois, said, “We know that the science tells us that the food additives are dangerous and linked to serious health risks such as hyperactivity in children, perhaps leading them to behavior that we don't want to see them exhibit.” He noted FDA hasn’t acted on the use of Red 3 in food although it is banned in cosmetics such as lipstick.

Mistrust of FDA’s assessment of ingredient safety is a common theme. “FDA's analysis of these chemicals, where they found that these are safe, are based on research of reports that are 35 to 70 years old,” said Gabriel. “Many of these studies were done in the 1960s. That's when football players were smoking cigarettes at halftime.”

In the absence of federal action, he said the states have no choice but to step up and lead. “Last year we made significant progress with the passage of the California Food Safety Act, which banned those four dangerous chemicals,” he said. “We put pressure on the FDA, and we've helped to spark a national conversation about food safety.” FDA is currently reassessing the safety of titanium dioxide as well as those that were banned in California: brominated vegetable oil, Red 3, potassium bromate and propylparaben.

Kristi Muldoon Jacobs, acting director FDA, Office of Food Additive Safety discussed the agency’s approach to food safety in a webinar held December 14, 2023. Before a substance comes to market, there must be data that demonstrates the ingredient’s safety, but that data does not have to be submitted to FDA. It does have to be publicly available and generally recognized.

“For a substance to meet the GRAS (generally recognized as safe) provision, that data must be published in public and it must be of a suitable quality and convincing enough that experts in the field would agree that that data set supports the generally recognized as safe designation under the intended use,” she explained.

Because GRAS authorization is voluntary and does not come from the agency, she acknowledged it raises the challenge of consumer perception. It’s possible that substances come to market without the FDA being aware of them. The agency is developing tools to survey the food landscape through computational systems to crawl the internet.

The Assembly member said he wants to get ahead of any Skittles misinformation, in reference to the name the press gave AB418 (the Skittles ban).

In reference to Flaming Hot Cheetos, Gabriel said the bill will not prohibit their sale in California, but they will not be allowed in schools unless one of two things happens. “The makers of Flaming Hot Cheetos would decide to switch to safer alternative ingredients, as many of these folks have done with their products in Europe. Instead of getting the color from a synthetic food dye, they could get it from beet juice, or turmeric, or pomegranate juice, or any of these other natural ingredients out there. They could decide to switch their recipes and then be able to continue to sell these products in schools. Or our school districts would have the opportunity to switch to safer foods to serve our children.”

The National Confectioner’s Association (NCA) takes exception to the notion that U.S. manufacturers can easily replace titanium dioxide and Red 3 in food products. Christopher Gindlesperger, senior vice president, Public Affairs & Communications at NCA, said it’s not that easy. “Any replacement options must first be petitioned for FDA review and gain approval for use before being legally used as a color additive in the US. Currently, no FDA-approved alternative to titanium dioxide or Red 3 can provide similar pigment, opacity, or shelf-life properties. “

Other myths abound. A fact sheet by NCA references the commonly heard argument that titanium dioxide and Red 3 are banned in Europe and many other countries due to safety concerns. Gindlesperger countered, “The claims regarding safety concerns are false, and Red 3 is not banned in the EU. FDA continuously reviews colors and other food additives and proactively addresses consumer concerns. “

While NCA supports FDA, they find the lack of the agency’s initiative frustrating in the face of state legislation. “It’s time for FDA Commissioner Califf to wake up and get in the game,” said Gindlesperger. “These activists are dismantling our national food safety system state by state in an emotionally driven campaign that lacks scientific backing. FDA is the only institution in America that can stop this sensationalistic agenda which is not based on facts and science. “

Though states have gotten the lead in assessing food safety, Gindlesperger pointed to examples of FDA review of colors and other food additives to address consumer concerns. “There are many examples of this, including food additives being targeted by the state ban proposals including brominated vegetable oil (BVO). FDA recently conducted its own studies and has initiated steps to remove BVO from the U.S. food supply. This is how our food safety system was designed to work, and it’s a real-time example of it working.”

Frank Yiannas, former deputy commissioner of FDA, has been vocal in his opposition to states enacting food legislation. On LinkedIn and in the press, he has voiced concerns about the disruption to industry and economic costs of a patchwork of laws.

The Environmental Working Group (EWG) supports the new California bill, other pending state bills and a Congressional bill recently introduced by Illinois Congresswoman Jan Schakowsky. “Toxic chemicals in food are a top concern for consumers, with good reason,” said Melanie Benesh, EWG vice president of government affairs. “Thousands of chemicals are allowed for use in food sold in the US. And almost all of those chemicals introduced since 2000 were approved by the food and chemical industry, not the Food and Drug Administration.”

EWG believes states have had no choice but to step up to protect consumers from harmful food chemicals. “Many of the chemicals the FDA intends to review have already been banned by state regulators or are not chemicals directly added to food or packaging,” she continued. “Others have been under review by the FDA for years with no end in sight.”