States are moving faster than federal regulators to rein in controversial food additives and ultra-processed foods, advancing proposals at a pace that outstrips slower national efforts like the ‘healthy’ rule and organic standards.
The process to develop a ‘healthy’ definition, for example, received significant industry and community input over a decade, whereas concerns over UPFs have arisen quicker, sparking more action from consumers and industry players to address health and nutrition impacts, Kathleen Sanzo, partner at the law firm Morgan Lewis.
Fragmented state-by-state food policy proposals sparked action from FDA
California’s Food Safety Act in 2023, which bans propyl paraben, brominated vegetable oil, Red Dye No.3 and potassium bromate by January 2027, initiated the movement to ban additives in other states. Earlier this year, Florida, Arizona and Utah followed suit to propose similar bans. Experts warned that state-by-state food legislation contributes to a fragmented food system with serious implications on food safety, nutrition and sustainability priorities.
“We now have upwards of 15 states that are nibbling at the issue of how to define ultra-processed foods,” explains Sanzo.
Now, FDA is considering a national UPF definition with the aim to fill in nutritional gaps that the current process-focused NOVA classification system misses.
FDA defining UPFs could simplify compliance across all 50 states – but it also could disrupt food formulation, supply chains, retail operations and consumer access to affordable nutrition, warns Sanzo.
“Often the industry will come to the FDA or to whatever federal agency is in charge of the issue and say, ‘Look, for purposes of making our lives easier and doing business across 50 states, not 15 states, we would like to have a unified or a uniform definition,’” Sanzo elaborated.
With mounting pressure from states to remove additives from the food supply, FDA issued an informal phase-out of artificial dyes like Red Dye 40, Yellow 5 and 6, Blue 1 and 2 and Green 3 by 2026.
Given the considerable number of states developing their own food policies, a uniform definition “is in the industry’s interest,” depending on how the definition is constructed, she added.
What should companies consider when preparing their comments?
Sanzo expects many comments for the UPF RFI to address technical and scientific analysis on UPF formulations and impacts on health. Deadline to submit comments to the federal register is Sept. 23
For example, stabilizers and emulsifiers deliver texture and mouthfeel, but depending on how FDA defines UPFs, some brands may remove these materials which could affect shelf stability and trigger a domino effect impacting the distribution chain and retail.
“Rotation is going to be quicker as retailers have to turn this over more quickly,” Sanzo added.
Ingredient substitution is another issue around the potential removal of certain additives. While some companies, like The Coca-Cola Co. and PepsiCo, are getting ahead of reformulations, an increased demand in certain ingredients will create sourcing and supply problems that may result in higher costs, Sanzo said.
For reformulated products, Sanzo says that communicating product changes around availability, mouthfeel and physical appearance could significantly impact consumer sentiments.
Yet, Sanzo says, given the risks of major disruption, “the food industry is going to be very deliberative and thoughtful” about their comments.
“We have already seen companies making alterations to their formulations based on the proposals to remove certain color and food flavorings,” she said, adding that these changes are nothing new to the trade associations that have been monitoring concerns over UPFs for a long time.
What are the implications of a unified UPF definition on other existing food policies?
A UPF definition could intersect with other regulations – front-of-pack labeling, dietary guidelines, food standards and additive rules – potentially requiring coordinating policy changes, Sanzo said.
She emphasizes that any definition must be grounded in science, considering factors like the total count, type and nutritional value of distinct ingredients in a product’s formulation, and cautions against making sweeping changes without strong evidence.
“Whoever is taking a look at this, they need to really look closely at the science, because making a lot of changes without scientific substantiation for whatever is chosen as a better approach, doesn’t make a lot of sense. So, hopefully, we will have lots of science and food technologists weighing in here to provide their thoughtful analysis of what makes the most sense,” Sanzo added.
