By: Elizabeth Tansing, Vice President, State Government Affairs, FMI 

California State Capitol Angled

California legislation approved in October 2023 by Governor Gavin Newsom, “The California Food Safety Act” ( AB 418), is not only a first-of-its-kind bill, but it also conflicts with the U.S. Food and Drug Administration’s (FDA) authority and is a catalyst for 2024 legislation in other states. 

Beginning January 1, 2027, the bill prohibits manufacturing, selling and distributing into commerce food for human consumption containing (1) Brominated vegetable oil, known as BVO (CAS no. 8016-94-2); (2) Potassium bromate (CAS no. 7758-01-2); (3) Propylparaben (CAS no. 94-13-3) and (4) Red dye 3 (CAS no. 16423-68-0). Read an FMI issue paper for more information on this law. 

In November 2023, FDA released a statement acknowledging enactment of California AB 418, while assuring the public, “The FDA prioritizes its review of chemicals in food based on risk, science, and regulatory authority.” In its statement, FDA proposes to revoke the regulation authorizing BVO, and is currently reviewing the safety of additives including Red dye 3 and Titanium Dioxide. (Titanium dioxide was included in the introduced version of AB 418 but was amended out.) 

Under the perception that FDA has been ignoring food additive safety, seven states have so far introduced nine bills in 2024, almost all similar to or the same as AB 418. 

  • CA  AB 2066: Commencing January 1, 2027, prohibits a person or entity from using methylene chloride in the process of decaffeinating coffee.
  • IL  SB 2637: Identical to CA AB 418.
  • MO  HB 2474: Identical to CA AB 418.
  • NY  AB 6424  and SB 6055: Identical to CA AB 418, but also includes Titanium Dioxide and has an effective date of January 1, 2025, and “the recognition by the federal Food and Drug Administration of any of these substances as safe may not be alleged as a defense.”
  • RI  HB 7300: Identical to CA AB 418, except penalties for violations are different. Scheduled for a hearing on February 8, 2024, before the House Health & Human Services Committee.
  • SD  HB 1169: Bill killed on Jan 31, 2024, in House Commerce and Energy Committee. It was similar to AB 418.
  • WA  HB 1921: This bill is dead. It was identical to CA AB 418.

Food Additive Bill Map

This map shows that state bills on food additive bans are not just showing up in left-leaning states, and we expect more legislation this session. For example, a New Jersey bill was introduced and killed in 2023 that prohibited Red dye 3 in foods, and that could crop up again.

States should not supersede the authority of FDA. While these reviews take time, one of the key reasons for FDA’s proposed Human Foods Program (HFP) currently underway is to enhance FDA’s review of food chemical safety. The proposed HFP would include the creation of the Office of Food Chemical Safety, Dietary Supplements and Innovation where FDA intends to develop a faster and more nimble process for evaluating chemicals in the food supply.