Is FDA Doing Enough to Ensure the Safety of Food Additives?

In a closely-watched development, California legislators recently passed a bill that could ban the sale of certain food additives in the state. Although the bill initially included titanium dioxide (TiO2), a widely used colorant, it was ultimately removed from the legislation due to industry opposition. If signed by Gov. Gavin Newsom, the California Food Safety Act would prohibit the manufacture, sale, or distribution of products containing brominated vegetable oil, potassium bromate, propylparaben, and red dye No. 3.

While this bill is the first of its kind, similar legislation has also been introduced in New York, raising the possibility of a nationwide ban on these additives. Even without a domino effect, the bill could effectively create a de facto national ban, as manufacturers would likely reformulate their products to comply with California's regulations.

The removal of titanium dioxide from the California bill was a significant concession made to accommodate industry stakeholders. This move helped pave the way for the bill's passage, as influential parties like the California Chamber of Commerce, the Dairy Institute of California, and the California Business Roundtable dropped their opposition. It should be noted that TiO2 is banned in foods in the European Union but has been deemed safe by the FDA.

Consumer Reports, a supporter of the legislation, expressed some disappointment at the removal of titanium dioxide. However, the successful passage of the bill with the remaining four additives (in a Senate vote of 33 to 3) was still seen as a positive development.

There is still a possibility, albeit slim, that the FDA might ban titanium dioxide in response to a Citizen Petition filed by the Environmental Defense Fund and others. The petition argues that the European Food Safety Authority has raised concerns about the genotoxicity of TiO2, questioning its safety. Meanwhile, industry stakeholders, including the Consumer Health Care Products Association, oppose the repeal.

In New York, TiO2 remains on the list of additives targeted for a ban in similar legislation. State Senator Brian Kavanagh, who introduced the bill in New York, highlighted the connection between the California and New York bills and suggested that decisions made in California could influence New York's approach.

The question arises: Is the FDA doing enough to oversee the safety of food additives? While a state-by-state approach is not ideal, Kavanagh argued that relying on the industry's self-determination of ingredient safety, under the Generally Recognized As Safe (GRAS) process, is also flawed. He pointed to historical instances where American companies exposed people to unsafe substances, emphasizing the need for stronger regulation.

Martin Hahn, a partner at the law firm Hogan Lovells, defended the FDA, noting that the agency can and does take action if it identifies safety concerns with an ingredient. He emphasized that legal standards exist to prevent the chemical industry from freely introducing potentially harmful substances into the food supply.

It is acknowledged that the GRAS process is imperfect, but both Ronholm and Kavanagh agreed that the FDA lacks the necessary resources to thoroughly evaluate all ingredients introduced to the market under the self-determination of GRAS. This is where state-level reform can play a crucial role in driving change, not just within individual states but also at the national level.

In conclusion, while the FDA's oversight of food additives may have limitations, the passage of legislation in California and the ongoing discussions in New York highlight the importance of addressing the safety of these substances. With increased scrutiny, there may be opportunities to enhance regulatory processes and ensure the well-being of consumers nationwide.