Oct 11, 2023

New California law won't ban Skittles, but could change food additives

California became the first state in the nation to ban the use of four food additives commonly found in thousands of products across the United States, including cereals, sodas and candies.

Gov. Gavin Newsom on Saturday signed the law misleadingly known as the "Skittles ban," which will prohibit the manufacture, sale or distribution of brominated vegetable oil, potassium bromate, propylparaben and Red Dye 3. The four chemicals are used in as many as 12,000 food products across the country despite never having been approved for consumption by the Food and Drug Administration, according to the Environmental Working Group.

Advocates have long expressed concerns about the potential health problems that can be caused by eating products containing the additives, which other countries have already banned.

In a signing message, Newsom said the law is a "positive step forward" until the FDA reviews and establishes national regulations on the use of the four additives. The law takes effect in 2027 to give companies time to revise their recipes to exclude the "harmful chemicals," Newsom said.

"Californians trust that the food products they consume are safe," Newsom said in his statement. "I appreciate the author and stakeholders for working on amendments, which advance our shared public health objectives while maintaining consumer choice."

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Most chemicals added to food and packaging are meant to enhance flavor or appearance or are simply to preserve freshness.

While most are safe to eat, Consumer Reports and other advocacy groups say the four food chemicals included in the California Food Safety Act have been linked to a number of serious health concerns. Red Dye 3, for instance, has been found to cause cancer in animals, although there is not enough research linking the additive to cancer in humans.

But the use of Red Dye 3 − banned from cosmetics in the U.S. since 1990 − in food has elicited opposition nonetheless.

Consumer Reports, an advocacy and research nonprofit, earlier this year called on the maker of Peeps candies to stop using Red Dye 3 in its products. Additionally, the Center for Science in the Public Interest, a consumer food safety organization, was among 24 groups and scientists that joined Consumer Reports in starting a petition last fall calling on the FDA to formally remove Red Dye 3 from the list of approved color additives in foods, dietary supplements and oral medicines.

The chemicals banned by the California Food Safety Act haven’t been reviewed by the FDA for 30 to 50 years, if ever, according to Consumer Reports, which co-sponsored the bill with the Environmental Working Group.

“We’ve known for years that the toxic chemicals banned under California’s landmark new law pose serious risks to our health,” Brian Ronholm, director of food policy at Consumer Reports, said in a statement. “California has taken an important stand for food safety at a time when the FDA has failed to take action."

The legislation became known as the "Skittles ban" because an earlier version also targeted titanium dioxide, a coloring agent found in candies including Skittles and M&Ms, as well as some dairy products such as Kraft fat-free shredded cheddar cheese.

Last year, a California man sued Skittles manufacturer Mars Inc., saying the candy is "unfit for human consumption" because it contains the substance. Mention of titanium dioxide was removed, however, when the legislation was amended in September.

Democrat Assemblyman Jesse Gabriel, who wrote AB 418, praised the bill's passage into law as "a huge step in our effort to protect children and families in California from dangerous and toxic chemicals in our food supply.”

“It’s unacceptable that the U.S. is so far behind the rest of the world when it comes to food safety," Gabrial said in a joint statement with Consumer Reports. "This bill will not ban any foods or products − it simply will require food companies to make minor modifications to their recipes and switch to safer alternative ingredients that they already use in Europe and so many other places around the globe."

But not all were happy about Newsom's decision to sign the bill, which will impose fines of up to $10,000 for violations.

Associations representing business interests have for months opposed the restrictions. And after it became law, the National Confectioners Association released a statement accusing California lawmakers of "once again making decisions based on soundbites rather than science."

"Governor Newsom’s approval of this bill will undermine consumer confidence and create confusion around food safety," the statement read. "This law replaces a uniform national food safety system with a patchwork of inconsistent state requirements created by legislative fiat that will increase food costs."

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Advocacy groups say the law probably will change how manufacturers produce products in not just California, but across the nation.

"Given the size of the state’s economy, it is unlikely manufacturers will produce two versions of their product − one to be sold in California and one for the rest of the country," according to Consumer Reports.

Meanwhile, other states have already started to follow California’s lead. A similar bill making its way through committee in the New York legislature also seeks to ban the same four chemicals, along with titanium dioxide.

The Environmental Working Group has signed two petitions being considered by the FDA that would be a blanket ban on the use of titanium dioxide and Red Dye No. 3 in food.

“These petitions offer the FDA a chance to step up to the plate and do its job to protect Americans from toxic food chemicals,” Scott Faber, the group's senior vice president for government affairs said in a statement. “We urge the FDA to take action on these petitions and protect the health of all consumers across the country."

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All four additives have already been banned by European regulators, with the narrow exception of Red Dye 3 in candied cherries, according to Consumer Reports.

The European Union's ban came in 2008 after it launched a full review of the safety of all food additives.

Rebuking the misnomer of "the Skittles ban" for the law, Newsom pointed out in his statement that the popular candy continues to be sold in places like the European Union despite existing bans on a number of chemical additives and colorants.

"The food industry is capable of maintaining product lines while complying with different public health laws," Newsom said. "Californians will still be able to access and enjoy their favorite food products, with greater confidence in the safety of such products."

Eric Lagatta covers breaking and trending news for USA TODAY. Reach him at [email protected]

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