FDA courted by both sides over California’s ingredient ban

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When consumer and environmental groups went to California to ban certain ingredients from food, they hoped to get the FDA’s support for national action.

But food manufacturers are also looking for support from the FDA and have issued something of a challenge to FDA Commissioner Robert Califf,

It came in the form of a letter to the commissioner from John H. Downs Jr., President and CEO of the Washington D.C.-based National Confectioners Association (NCA)

Downs wrote Califf “to request that the U.S. Food and Drug Administration defend its legal, fiduciary and moral responsibility as our nation’s chief and centralized food safety agency and demonstrate that its science-based regulatory rigor and leadership has helped make the U.S. food system the envy of the world.”

“As you know and might agree, Governor Newsom and the California legislature, in enacting AB 418, have completely overstepped their area of expertise, telling the American people that the Biden Administration’s FDA is incapable of keeping the food supply safe by implementing a ban on certain food ingredients through legislative fiat.” Downs wrote, “Undoubtedly, the action in California has led and will lead to similar legislative proposals in other states, which could result in bans of additional food ingredients that completely decentralize FDA’s authority and create a massive patchwork of requirements for U.S. food manufacturers.”

In this situation,” he added, “we are faced with a lack of federal expertise and authority needed to dispel myths and consumer confusion permeating California and correct misinformation about the food ingredients and additives banned in that state.

Downs said food expert and toxicologist James Coughlin called the entire process in California “unnecessary and unscientific,” – and we in the confectionery industry agree. 

“The organizations behind California’s new law are openly calling for replacing FDA’s authority with a state-by-state patchwork of laws wherein state legislators make food safety decisions without any scientific basis,” the letter continued.

As just signed into law, California AB418 bans brominated vegetable oil, potassium bromate, propylparaben, titanium dioxide,  and Red dye No. 3 from food. 

A fifth ingredient, titanium dioxide, was removed from California’s banned list before final passage of AB418.

After Jan.1, 2027, under the new law, it will be illegal in California to manufacture, sell, deliver, distribute, hold, or offer for sale any food product for human consumption that contains any of the four products.

Two national consumer and environmental organizations, Consumer Reports and the Environmental Working Group, guided AB418 to passage in California.

The Downs letter continues: “The broader food industry and American consumers need to know that the FDA is prepared to prevent that slippery slope from becoming a reality and that it has done and will continue to do the job the Congress has given it for more than 117 years:

“As you know, there are limited or no alternatives for some ingredients subject to the California ban. The U.S. Department of Agriculture estimated that it could take a decade or longer to develop and obtain FDA approval for a safe replacement for a color additive. 

“This impact is particularly relevant in today’s inflationary environment as consumers are feeling the pinch when it comes to the high cost of groceries, and the cost of reformulation will be substantial and ultimately passed on to consumers in the form of higher prices.

“There has been a significant amount of public attention and media coverage given to the food ingredient and additive ban in California, including some who say that the state is being proactive by moving faster than the FDA. But much of this commentary is built on falsehoods that are unfortunately all too easy to accept at face value and have been made by those who do not know or understand FDA’s review processes.

“ It’s time for the FDA to get off the sidelines and clear up this misinformation because California is out of its depth regarding national food safety standards and regulatory processes. That expertise and authority rests with the FDA alone. Unlike FDA’s processes, the legislative process is not transparent and does not solicit and consider stakeholder feedback to decide based on the totality of scientific and real-world evidence.”

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