Candy and sports drink aisles in California grocery stores could look very different if AB418 is passed into law. The California Assembly has proposed amending the state’s Health and Safety Code to prevent the manufacture, sale, delivery, distribution, holding, or offering for sale any food that contains any of the following substances:
- Brominated vegetable oil;
- Potassium bromate;
- Red dye 3; or
- Titanium dioxide.
These ingredients are commonly used as emulsifiers and to protect citrus flavor (brominated vegetable oil), to help dough rise (potassium bromate), as preservatives (propylparaben), and for color (red dye 3 and titanium dioxide [a whitening agent]).
While these ingredients are Generally Recognized As Safe (GRAS) by the FDA, the two state Assembly members sponsoring the bill have taken the position that these ingredients are toxic. The bill’s sponsors have pointed out that the European Union has already banned all five additives from food use applications. Some food manufacturers who use titanium dioxide have been sued in California federal court on the theory that foods containing the ingredient are unfit for human consumption.
If the bill becomes law, then food manufacturers who use any of the above ingredients would have to reformulate their products in order to continue selling them in the state of California. Additionally, any manufacturing facilities located in California that produce products with these additives will have to work with the food company to reformulate or shift production outside of the state. If the manufacturing facility continued to produce food items with the additives, it would be at risk of being shut down by state regulators. Similarly, any grocery stores or retailers selling the items would want to sell through their stock before the law takes effect.
Because each of the additives targeted by the bill are presently designated as GRAS, if the bill were passed into law there is some likelihood it would be challenged in court on a preemption theory. Such an attack would not be without basis: in other contexts, courts have confirmed that states cannot proscribe the use of food additives that FDA has determined to be GRAS. See Marrache v. Bacardi U.S.A., Inc., Case No. 19-23856, 2020 U.S. Dist. LEXIS 13668 (S.D. Fla. Jan. 28, 2020); Beasley v. Conagra Brands, Inc., Case No. 18-cv-06730, 374 F. Supp. 3d 869 (N.D. Cal. 2019).
The present text of AB418 states the law (if passed) would take effect on January 1, 2025. Thus companies, manufacturers, and retailers have some time to evaluate their options.