Food group warns of flood of state laws banning additives

A food industry trade association is raising the alarm about a rash of proposed state-level bans of FDA-approved food additives, some of which are relevant to the dietary supplement trade. 

The National Confectioners Association (NCA) issued a press release this week that raised awareness of the issue. 

California last year passed a law — set to take effect in 2027 — that bans four food additives that had been approved by the U.S. Food and Drug Administration. They are brominated vegetable oil (BVO), potassium bromate, propyl paraben and Red Dye No. 3. 

According to California Assemblymember Jesse Gabriel, a Democrat who sponsored the bill, the four additives have been associated with cancer and other health risks and have been banned in several countries already. 

NCA: New state laws threaten to create patchwork regulatory quilt 

Now, the NCA said, several states are lining up to follow in California’s footsteps. Not only are these efforts based on hearsay and misrepresentation of scientific evidence, but they also undermine FDA’s authority and in so doing could diminish the effectiveness of the national food safety system. 

"Some states are proposing to dismantle our well-developed national food safety system in an emotionally driven campaign that lacks scientific backing," John Downs, NCA's president and CEO, said. "FDA needs to assert its authority as the rightful national regulatory decision maker and leader in food safety. It's time to stop pretending that consumer magazine publishers and state legislators have the scientific expertise and qualifications to make these very important determinations." 

Related:Titanium dioxide ban: Five takeaways for U.S. supplement companies

"Usurping FDA's authority does nothing but create a state-by-state patchwork of inconsistent state requirements that increase food costs, create confusion around food safety, and erode consumer confidence in our food supply," he added. "FDA and regulatory bodies around the world have deemed our products safe. “ 

NCA noted that similar proposals are under consideration in Illinois, New York and Pennsylvania. State legislatures in Indiana, Maryland, South Dakota, Washington and West Virginia have rejected similar bills, because according to the NCA the proposals lack scientific basis. 

Red Dye No. 3 has been banned in cosmetics but on the national level has been approved for use in foods since 1969. In November 2022 the Center for Science in the Public Interest and a long list of collaborators filed a petition asking FDA to review the safety of the ingredient.  

Titanium dioxide was originally included in the pending California ban, but it was removed when FDA reiterated its position that TiO2 is safe. FDA cited what it considers to be some shortcomings in the process the European Food Safety Authority (EFSA) used to determine that TiO2 is not safe for foods. Those shortcomings included tests done using materials that are not representative of what’s in the market, and administration routes that were not relevant to how consumers are exposed to the ingredient. 

FDA already planned to reassess BVO 

While NCA has panned the “emotional” nature of the proposed bans, FDA appears to agree that at least one of the ingredients — brominated vegetable oil (BVO) — should be reassessed. In November, the agency announced a process to investigate removing this ingredient from the list of approved additives. BVO is used to prevent separation in some beverages, but is not used much anymore, the agency noted.  

The other two ingredients, potassium bromate and propyl paraben, are on FDA’s list of chemicals under review but have not been the subject of official action. Potassium bromate is used as a dough conditioner, while propyl paraben is an antimicrobial ingredient. 

FDA plans to address criticism of safety review process 

FDA is aware of the criticism that many of these food additives were approved years ago, and the agency may be behind in assessing new information in relation to them. 

In a recent webinar sponsored by the group Alliance for a Stronger FDA, Jim Jones, the agency’s deputy commissioner for human foods, had this to say: 

“I have moved five FTEs to support our existing chemicals work specifically to establish a group dedicated to post-market reassessment in the Office of Food Additive Safety, and in the proposed reorganization, we have envisioned this group to become an office dedicated to post-market activities.” 

Jones also emphasized FDA’s role in overseeing the safety of food chemicals in the U.S. 

A robust “national food safety system is not built state by state,” he said during the webinar. “Clearly, having states issue these types of bans, while within their rights under our current regulatory system, is not ideal. States play a crucial role as our partners in regulating the food supply. Coordinating our efforts is integral to our success. But the FDA needs to lead the way in food chemical safety, because your access to safe foods should not depend on where you live in the United States.”