The Assembly’s Environmental Safety and Toxic Materials Committee will consider the bill next on April 18, 2023. Introduced by Assemblymember Jesse Gabriel (D-Woodland Hills), AB 418 is co-sponsored by the Environmental Working Group (EWG) and Consumer Reports.
According to a joint press release by EWG and Consumer Reports, all five proposed additives are “linked to serious health problems, such as a higher risk of cancer, nervous system damage and hyperactivity.” If passed, California will be the first state to enact a prohibition.
Companies urged to replace additives with alternative ingredients, ‘make minor modifications’ to formulas
While AB 418 is a pending bill which has not received the California state legislature’s full chamber vote, it’s worth noting that legislation passed in California will impact CPG manufacturers across the country.
“Given that the federal government has already and expressly authorized the use of certain substances that AB 418 would potentially prohibit, legal challenges to the bill are likely if the bill is enacted,” said Kristine Kruger, senior counsel, Perkins Coie LLP.
Melanie Benesh, VP government affairs, EWG, explained to FoodNavigator-USA that switching to alternative ingredients (like starch-based options for titanium dioxide or sucrose acetate isobutyrate for BVO) can help CPG manufacturers achieve the same taste and appearance as controversial counterparts.
“We also know that there are alternatives available…and those foods can be made to look similar and taste similar without these additives,” she said.
According to the joint press release, Assemblymember Gabriel confirmed that it is unlikely products containing these additives will be pulled off the shelf. Gabriel referred to EU’s banning of TiO2 which resulted in “minor modifications to [manufacturers’] recipes so that these products no longer include dangerous and toxic chemicals.”
Per the bill’s proposal, the change will take effect in January 2025 for manufacturers to reformulate and phase out the additives. Recent amendements made on April 13 include penalties of up to $5,000 for initial violations and $10,000 for each successive violation, explained Tommy Tobin, associate, Perkins Coie LLP.
Trade associations pen letter to oppose AB418, citing it ‘usurps the comprehensive food safety and approval system’
The collective letter from Consumer Brands Association, American Chemistry Council, International Association of Color Manufacturers, California Grocers Association, California Manufacturers & Technology Association, California Chamber of Commerce, California Retailers Association and Chemical Industry Council of California, among others to Chairman Alex Lee, chair, Assembly Environmental Safety and Toxic Materials Committee express unanimous opposition in the passing of AB 418.
The group stated, “Food safety is a paramount concern to us and our members; however, this measure usurps the comprehensive food safety and approval system for these five additives and predetermines ongoing evaluations.”
The letter went on to explain that the federal and California’s systems, along with many international scientific associations, have reviewed the proposed additives and confirm their safety.
“Scientific regulators work through these processes and make determinations to establish recognized safe thresholds. Then, when appropriate and supported by peer-reviewed scientific evaluations, they require additional labels or removal from the market.”
Specific to California’s policies, the letter added that the state’s regulatory bodies are actively promoting food safety through removal of harmful chemicals, implementing warning labels and determining safety from additives and whether these chemicals subject consumers to allergies.
Titanium Dioxide Stewardship Council (TDSC) (under the American Chemistry Council umbrella) issued a separate statement opposing AB 418 and supporting existing regulatory processes and policies to support safe food supply.
“AB 418 unnecessarily politicizes food additive safety determinations and undermines thorough processes that rely on on-going assessment of adverse event reports, peer-reviewed scientific research and careful consideration of risk based on actual or reasonably anticipated dietary exposures."
FDA deems TiO2, Red 3 and BVO as safe, EWG says ‘food chemical safety program is neglected’
Prior to the proposal, titanium dioxide (TiO2), Red Dye No. 3 (Red 3) and brominated vegetable oil (BVO) were also subjects of FDA review due to growing concerns for safety.
In December 2022, FDA reviewed the use of TiO2 in foods as a color additive and confirmed that “the available safety studies do not demonstrate safety concerns” as reported by FoodNavigator-USA.
“Titanium dioxide, one of the proposed five substances to be banned by AB 418, is one of the latest targets among consumer class action lawsuits,” explained Kruger.
TDSC cites a “broad global consensus concerning the safety of TiO2 as a food additive” including reviews from Health Canada and Food Standards Australia New Zealand (FSANZ). Along with the FDA these organizations refer to weak or no evidence in food-grade TiO2 exposure.
As for Red 3, The Center for Science in the Public Interest (CSPI) et al urged FDA to remove Red Dye No. 3 from its list of approved additives in foods, dietary supplements and ingested drugs. The petition has over 21,000 comments as of April 17, 2023. Industry trade groups representing color additives have until May 18, 2023 to submit a comment on regulations.gov.
CSPI also urged FDA to reevaluate and remove BVO from its interim status. Although BVO was removed from Gatorade by PepsiCo due to negative consumer perceptions, the additive is still considered safe by the company – and by FDA. The agency stated that BVO is safe to use in beverages at 15 ppm.
Why are these substances continually returning to the chopping block? Benshen referred to FDA’s lack of oversight on regularly reviewing chemical safety. “The FDA mission is to address all health risks from food, not only the acute health risks, but also the chronic risks from food chemicals that may increase your risk of cancer over time. But the food chemical program has just been long neglected by the FDA because there is no statutory mandate for the FDA to regularly go back and review the safety of these chemicals.”