By: Lindsey Conely

Published On: May 16, 2024

When walking into a grocery store, we assume that all the food is safe to eat. Unfortunately, that is not the case. There are some food products and additives commonly sold and eaten in the United States that can have lasting damaging side effects.[1] On October 7, 2023, Gavin Newson, the Governor of California banned four food additives in The California Food Safety Act.[2] These include brominated vegetable oil, potassium bromates, propylparaben, and red dye 3.[3] These food additives are known to have negative side effects, including a higher risk of cancer, nervous system damage, hyperactivity, and other neurological conditions.[4] Red dye 3 is commonly found in candies, including Skittles, which is why the Bill has been nicknamed “The Skittles Ban.”[5]

The Food and Drug Administration

Food additives and color additives require pre-market review and approval by the FDA.[6] Manufacturers are required to supply the FDA with evidence that establishes each chemical is safe at its intended level of use before it may be added to foods.[7] However, if a food additive is Generally Recognized as Safe (GRAS) then there does not need to be pre-market approval.[8] To establish that something is GRAS all data must be publicly available, and its safe use must be generally recognized by qualified experts.[9] However, the FDA does monitor post-market activities, meaning that the food is continuously analyzed to ensure its safety.[10] Therefore, an additive that was once recognized as safe could be removed from the market when new data arises that reveals it is damaging to public health.[11]

The FDA has been slow to remove food additives that are known to have negative side effects, and other organizations, like the European Union, have already banned them (since 1994) because they are not safe for human consumption.[12] Melanie Benesh, the Vice President of Governmental Affairs at the Environmental Working Group noted that “there’s no reason that foods that you can find on the supermarket shelves in Europe should be safer than the ones that we find here in California.”[13] The same logic should be used for all food consumption across the United States.

The typical person going grocery shopping is not spending hours researching common foods to see if there are damaging side effects when eating them.[14] The kinds of food that contain the four banned additives include citrus-flavored sodas, skittles, bagels, and packaged tortillas.[15] All of these are very common foods that the average American consumes.[16] Further, this California act protects those in poverty who have less access and resources to information on the damaging side effects of eating these sorts of food additives.[17] Since healthier food is typically more expensive, those who must purchase cheaper alternatives, including unsafe food additives, will suffer the consequences of the slow-moving U.S. Food and Drug Administration.[18] Manufacturers can also disguise the use of harmful food additives when they label their food “all-natural.”[19] Removing the harmful additives from the market will protect the public from having to worry about whether the “all-natural” food they are purchasing really is safe to eat.[20]

Further Steps to Protect the Public Health

The FDA has been slowly working to eliminate some of these food additives. After California’s Bill, the FDA began working to ban some harmful food additives.[21] For example, On November 2, 2023, the FDA proposed to revoke the regulation authorizing the use of brominated vegetable oil.[22] However, the FDA is still slow to take steps toward eliminating all food additives that have known health risks.[23]

The Food and Drug Administration needs to act faster when known risks of additives such as these have been available for decades.[24] The job of the FDA is to protect the public health by ensuring the safety, efficacy, and security of human drugs, biological products, medical devices, our nation’s food supply, and cosmetics.[25] Every citizen should feel confident that the FDA has done its job and not worry about which items are safe to consume while grocery shopping for themselves and their families.[26] Hopefully, California’s Bill will steer the FDA in the right direction when deciding which food additives are no longer safe to be on store shelves and protect the public from unnecessary health risks.[27] However, with California’s ban it is likely that food manufacturers are already working on changing their food production because they are not likely to produce different types of products when they cannot be sold to such a large market as California.[28]

Those who oppose this change are concerned that manufacturers will increase the price of their foods to make up for lost profit from implementing the new standards.[29] However, it is the FDA’s job to be financially conscious of new food pricing and the FDA’s overall goal is to ensure public safety at the end of the day.[30] Further, the FDA gives a compliance period.[31] This additional benefit minimizes market disruptions by providing the industry sufficient time to identify suitable replacement ingredients, to exhaust existing product inventories, and to reformulate and modify labeling of affected products.[32] California included this grace period as the bill’s effects commence on January 1, 2027.[33] Others argue that California acted too swiftly and should have waited for the FDA to set national standards because only California consumers will be paying a higher price to make up for lost profit in changing the products.[34] However, the FDA has allowed these food additives to stay on the market decades longer than other countries.[35] Those in support of the bill note that the same companies are selling the food products in Europe to comply with the European market and therefore it is possible and affordable to reformulate the foods in a way that will keep consumers safe and healthy.[36] It is hard to tell whether this will pressure the FDA to more strictly regulate food additives, but hopefully with this new legislation and public pressure, everyone can be confident in the foods they are picking off the shelves.

This argument does not cover the full implications of removing these additives from the market, however, the public’s health and safety should be the FDA’s top priority.[37]

[1] See Shreya Agrawal, New California law bans 4 food additives used in common sweets, https://calmatters.org/health/2023/10/california-food-additives-skittles-ban/, (Oct. 7, 2023).

[2] See Agrawal, supra n. 1; California Assembly Bill No. 48.

[3] See Agrawal, supra n. 1.

[4] See Agrawal, supra n. 1.

[5] See Scott Medintz, No, California is not trying to ban skittles, Consumer Reports, (Mat 5, 2023), https://www.consumerreports.org/health/food-additives/no-california-is-not-trying-to-ban-skittles-a7767058047/.

[6] See Food & Drug Administration, https://www.fda.gov/food/food-ingredients-packaging/food-chemical-safety (last visited January 12, 2024).

[7] See id.

[8] See id.

[9] See id.

[10] See id.

[11] See Medintz, supra n. 5.

[12] See Agrawal, supra n. 1.

[13] See Agrawal, supra n. 1.

[14] See Medintz, supra n. 5.

[15] See Food & Drug Administration, https://www.fda.gov/food/food-additives-petitions/brominated-vegetable-oil-bvo (last visited Jan. 12, 2023).

[16] See Medintz, supra n. 5.

[17] See USA Gov, https://www.usa.gov/agencies/food-and-drug-administration (last visited Jan. 12, 2024).

[18] See id.

[19] See Andrea Rock, Peeling Back the ‘Natural’ Food Label, https://www.consumerreports.org/food-safety/peeling-back-the-natural-food-label/ (last visited Feb. 2, 2024) (highlighting that consumers often purchase food when it is labeled “natural” assuming that they are made without genetically modified organisms or hormones, when in fact, the term “natural” has no clear meaning and is not regulated by any agency).

[20] See Rock, supra n. 19.

[21] See Medintz, supra n. 5.

[22] See Medintz, supra n. 5.

[23] See Medintz, supra n. 5.

[24] Zoe Wolkowitz, A recipe for chaos and confusion: consumers, companies, and courts hungry for improved food and beverage regulations, 54 UIC J. Marshall L. Rev. 567 (2021)

[25] See USA Gov, https://www.usa.gov/agencies/food-and-drug-administration (last visited Jan. 12, 2024).

[26] See Wolkowitz, supra n. 24.

[27] Court Rejects Unfair Competition Law and Warranty of Merchantability Challenge to Unhealthy Food Addditives: Use of Partially Hydrogenated Oils in Candy is Neither Unfair Nor Unlawful, 43 No. 10 Cal. Tort Rep. NL 3 (2022).

[28] See Medintz, supra n. 5.

[29] See Medintz, supra n. 5.

[30] Court Rejects Unfair Competition Law and Warranty of Merchantability Challenge to Unhealthy Food Addditives: Use of Partially Hydrogenated Oils in Candy is Neither Unfair Nor Unlawful, 43 No. 10 Cal. Tort Rep. NL 3 (2022).

[31] See id.

[32] See id.

[33] Agrawal, supra n. 1.

[34] Agrawal, supra n. 1.

[35] Court Rejects Unfair Competition Law and Warranty of Merchantability Challenge to Unhealthy Food Additives: Use of Partially Hydrogenated Oils in Candy is Neither Unfair Nor Unlawful, 43 No. 10 Cal. Tort Rep. NL 3 (2022).

[36] See Medintz, supra n. 5.

[37] See Wolkowitz, supra n. 24.