California leads the way on regulation of food additives

If you buy a package of cheese puffs in Asia or Europe, it would probably have a shorter and simpler list of ingredients than the same pack of puffs purchased in the U.S. That’s because the Food and Drug Administration allows many more additives into Americans’ food, including several that were banned decades ago in other countries.

California is trying to combat this problem. The state recently passed the California School Food Safety Act, banning six potentially toxic food dyes in schools. Just like the California Food Safety Act last year, which prohibits the use of four food additives, this new act comes before — perhaps years before — FDA regulation targeting these dyes.

The American diet contained an estimated 10,000 food additives in 2011, the latest study of its kind. Most of these chemicals — which are used to enhance the color, taste, texture and perishability of processed food — went unreviewed by the FDA. Food companies exploit a loophole in the FDA’s rules that let them self-determine an additive’s safety, yielding obvious conflicts of interest. Several studies link these chemicals to chronic illnesses. More states should follow California’s lead in food safety.

Many nonprofits, from the Environmental Working Group to Consumer Reports, have long opposed this loophole, which comes from a 1958 amendment to the 1938 Food, Drug, and Cosmetic Act. The amendment aimed to legally define common household ingredients like sugar, vinegar and pepper as “generally recognized as safe” and was not intended for lab-made chemicals.

In 2016, the FDA clarified this 1958 rule, claiming that examining every food additive would require authority it currently lacks and any changes would be up to Congress. A relaxed legal code could work fine if the FDA were strict about food safety. But it hasn’t been.

Propylparaben, a preservative, is banned in food in places like Europe, Japan, China and Singapore, yet the FDA classifies it as “generally recognized as safe.” Brominated vegetable oil, which emulsifies soft drinks, was banned by the FDA this July, decades after several other countries. And the last time the FDA reviewed the food dyes recently banned in California was 50 years ago. This sluggishness isn’t necessarily intentional — the agency is often understaffed.

The FDA did recently announce a plan to evaluate food additives, but can it audit at the same pace that food manufacturers self-approve new chemicals to put into our food? They have added thousands in recent decades.

The California Food Safety Act’s drafters cited the European Union and its use of the precautionary principle as the gold standard for food safety. The precautionary principle is a legal framework that recommends stopping a substance’s use when its safety is uncertain. It’s central to EU food law. And it’s been a crucial framework of several treaties that fight climate change, such as the 1987 Montreal Protocol, which banned gases that degrade the atmosphere’s protective ozone layer, and the 1992 Rio Declaration, which has guided sustainable economic development.

Though the EU and some Asian countries champion the precautionary principle, it has not caught on in the U.S. Some scholars argue that it shouldn’t, since precaution hurts innovation. But the tension between safety and innovation seems exaggerated, especially when it comes to processed food. While the precautionary principle can block one avenue of innovation, it can simultaneously spur another by pushing for something safer.

A 2013 investigation found that every new food additive was determined “generally recognized as safe” by someone linked to its manufacturer. Federal food law still lets this conflict of interest continue today. It’s uncertain whether the FDA could safeguard against these conflicts when it reviews food additives. It tries, but occasionally fails, when regulating drugs, which further justifies the proactiveness of state regulators.

California legislators crafted cogent arguments for getting the bill through legislative committees and signed by the governor. The bill’s proposers identified the top few most harmful food additives according to the latest scientific evidence and then cited the precautionary principle to justify the ban. They also presented alternatives to the additives so that food companies have no excuse to resist the change. Other states, like New York and Illinois, have introduced similar bills.

Even if some food manufacturers act in good faith and care about public safety, the incentives the FDA has left them can’t be good for our health. And from experience, I do think cheese puffs from Europe taste better.

Aman Majmudar is a recent graduate of the University of Chicago, where his B.A. thesis explored food regulation.