Written By: Ava C. McCann
On October 7, 2023, California passed Assembly Bill 418 (AB 418), known as The California Food and Safety Act that will take effect in 2027. This law will prohibit entities from selling food products that contain brominated vegetable oil, potassium bromates, propylparaben, and erythrosine. These common food additives that are currently deemed safe by the FDA, are found in various foods, candies, and sodas, but have been linked to health problems and disease. The punishment for violating this Act consists of a civil penalty up to $5,000 for a first violation and up to $10,000 for each subsequent violation.
There is hope that this ban will lead manufactures to modify their recipes and exclude these additives from products sold not only in California, but in the United States as a whole. There is major support for this Act; moreover, the European Union has already banned these additives. However, manufacturers may oppose this legislation, arguing that the FDA should make these assessments rather than state legislatures. This push back could raise a preemption issue that has the possibility of reaching the United States Supreme Court. On the other hand, this Act could encourage the FDA to agree with California’s ban and speed up the process of evaluating the safety of these food additives.
Preemption Analysis
Article VI, Section 2 of the Constitution is referred to as the Supremacy Clause and states that “. . . the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . .” Therefore, the Supremacy Clause establishes that federal law preempts state law when the two are in conflict. Preemption can be express or implied and there are two categories of implied preemption: field, and conflict preemption.
Express preemption is when there is explicit preemptive language in a federal statute stating that the law preempts state law. Field preemption is when a federal regulation is so pervasive that it creates a reasonable inference that there is no room for the states to supplement it. Finally, conflict preemption exists when compliance with both a federal and state regulation is impossible.
An example of conflict preemption can be seen in Gabe v. National Solid Waste Management Association. In Gabe, a federal act known as OSHA regulated workplace health and safety, giving states the option to preempt federal regulations by submitting a plan and then receiving approval. Half of the states received approval; however, Illinois was not one of those states. Therefore, when Illinois enacted licensing acts which established an environmental protection program to promote public safety, the Court held that this constituted conflict preemption.
The implication of California’s Assembly Bill 418 could raise potential conflict preemption issues. This issue would involve state police power and Congress’ power, which in this case is delegated to the Food and Drug Administration (FDA). However, in this case, the FDA has a proposed rule that would amend regulations to remove the authorization of the use of brominated vegetable oil as a food ingredient because there is no reasonable certainty that consuming this ingredient is safe. Therefore, there is hope that the FDA will agree with California law rather than allow the issue of preemption to get in the way of prohibiting these harmful food additives.
The National Impact of California’s Legislation
Considering that many food manufacturers supply their products to various states across the country, California’s Act will create conflicts for manufacturers who continue to use these food additives. Only time will tell as to whether California’s approach will encourage other states to follow suit, whether companies will move out of California to sell their products elsewhere, or whether the FDA will be forced to reexamine the safety of these additives.
Looking to the Future
Ultimately, this may be an issue that will be decided by the United States Supreme Court as to whether California’s Act raises an issue of conflict preemption. However, since the FDA has already proposed the possibility of amending regulations to remove brominated vegetable oil as a food additive, they may hop on board with California’s proposal and promote change on a national level.
Sources:
Annie Sciacca, California Moves Ahead of the FDA in Banning Common Candy Additives, CAL. HEALTHLINE, Oct. 20, 2023.
Bailee Henderson, California Food Safety Act Signed Into Law, Officially Banning Four Toxic Additives by 2027, FOOD SAFETY MAG., Oct. 9, 2023.
Claire Castles, Sarah Conway, Kyle Diamantas, Rasha Shields, Colleen Heisey, California Becomes the First State to Ban Four Common Food Additives, JONES DAY, Oct. 2023.
David Abramowitz, Carolyn Blessing, and Jeremy Murphy, Are Your Favorite Sweets Disappearing From the Golden State? California Issues Ban on Common Food Additives, LOCKE LORD, (Oct. 12, 2023).
Executive Office of the President, The Revocation of Authorization of Use of Brominated Vegetable Oil in Food, Office of Information and Regulatory Affairs.
Rebecca Trager, California ban on four food additives could spur wider action across US, ROYAL SOC’Y OF CHEMISTRY, Oct. 13, 2023.
The California Food Safety Act, Assembly Bill No. 418.
U.S. CONST. art. VI, § 2.
WILLIAM D. ARAIZA, CONSTITUTIONAL LAW, CASES. APPROACHES, AND APPLICATION 419-32 (Carolina Academic Press, 2d ed. 2021).