State legislatures are actively pursuing bans on food and color additives. California’s landmark Food Safety Act (Act), effective January 2027, bans the manufacture and sale of products containing brominated vegetable oil (BVO), potassium bromates, propylparaben, and FD&C red no. 3. This Act has inspired similar legislative proposals in the last few months in other states, as illustrated by the below chart.
State |
Legislation |
Banned Additives |
Status |
Effective Date |
|---|---|---|---|---|
|
California |
California Food Safety Act, AB 418 |
Brominated vegetable oil, potassium bromate, propylparaben, and red no. 3 |
Passed |
January 1, 2027 |
|
AB 2316 |
Blue no. 1, blue no. 2, green no. 3, red no. 40, yellow no. 5, yellow no. 6, and titanium dioxide (proposed ban for food provided in the state’s public schools) |
Pending |
If passed, July 1, 2025 |
|
|
Illinois |
SB 2637 |
Brominated vegetable oil (BVO), potassium bromate, propylparaben, and red no. 3 |
Pending |
If passed, January 1, 2027 |
|
Missouri |
HB 2474 |
Brominated vegetable oil, potassium bromate, propylparaben, and red no. 3 |
Pending |
If passed, January 1, 2027 |
|
New Jersey |
A5436 |
Brominated vegetable oil, potassium bromate, propylparaben, red no. 3, titanium dioxide |
Pending |
Thirteen months after the law is enacted |
|
New York |
A6424A/S6055B |
Brominated vegetable oil, potassium bromate, propylparaben, red no. 3, titanium dioxide |
Pending |
Would take effect immediately after enactment |
|
Pennsylvania |
HB 2116/ HB 2117 |
Brominated vegetable oil, potassium bromate, butylated hydroxyanisole, red no. 3, red no. 40, yellow no. 5, yellow no. 6, blue no. 1, and blue no. 2 |
Pending |
If passed, January 1, 2027 |
|
Washington State |
HB 1921 |
Brominated vegetable oil, potassium bromate, propylparaben, and red no. 3 |
Pending |
If passed, January 1, 2027 |
These state legislative efforts highlight both consumers’ and legislatures’ growing concern over certain additives and the desire to enhance consumer safety.
Last July, the Food and Drug Administration (FDA or the Agency) released a list of select chemicals then currently under the Agency’s review. This list included BVO, FD&C red no. 3, potassium bromate, propylparaben, and others. On July 3, 2024, FDA issued a final rule revoking the authorization for food companies to use BVO, citing toxicology studies indicating potential adverse health effects. The rule will take effect today, August 2, 2024, with a compliance date of August 2, 2025, allowing companies time to reformulate, relabel, and deplete inventory. BVO is used as a stabilizer in fruit-flavored beverages, primarily in citrus-flavored sodas. According to FDA, few beverages contain BVO. Therefore, the impact of this rule will most likely be limited.
Nonetheless, the final rule is an important signal of FDA’s commitment to chemical safety and to reevaluating the risk of existing chemicals. FDA took public comments before deciding to revoke permission to use BVO. The Agency received more than 40 comments on the proposed rule, all in support, with some suggesting further actions against other substances. While FDA stated that such requests are outside the scope of this rulemaking, it noted that reassessing the safety of substances used in food is an important part of its safety mission, especially as new information becomes available.
With the BVO ban becoming effective in August 2025, companies have time to prepare for compliance. The next 12 months will also offer an opportunity to strategize for potential future state and federal regulations. How will you deal with what may be a conflicting patchwork of regulations? Venable’s Food Law Practice is here to help guide you through these complex issues. Contact the authors with any questions.