On October 8, California Governor Newsom signed AB 1264 into law. The law will begin phasing out ultra-processed foods (UPFs) of concern from California schools by July 1, 2029. By July 1, 2032, vendors will be prohibited from offering UPFs of concern to California schools.
The law defines UPFs as foods or beverages that meet both of the following criteria:
- Contains surface-active agents; stabilizers or thickeners; propellants, aerating agents, or gases; colors or coloring adjuncts; emulsifiers or emulsifier salts; flavoring agents or adjuvants; flavor enhancers; OR nonnutritive sweeteners, as each term is defined in 21 C.F.R. § 170.3(o)
Excluding salt or sodium chloride; spices or other natural seasonings or flavorings, as listed in 21 C.F.R. § 182.10; and natural color additives, as listed in 21 C.F.R Part 73
AND
- Contains either:
(a) 10% or greater of its total energy from saturated fat, 10% or greater of its total energy from added sugars, OR a ratio of milligrams of sodium to calories that is equal to or greater than 1:1; OR
(b) nonnutritive sweeteners OR d-sorbitol, erythritol, hydrogenated starch hydrolysates, sucralose, isomalt, lactitol, luo han fruit concentrate, maltitol, steviol glycosides, thaumatin, OR xylitol
Of note, the law does not define “UPFs of concern.” The law directs the California Department of Public Health to define “UPFs of concern” by June 1, 2028.
There are a number of exemptions from the definition of UPF. For example,
- Raw agricultural commodities as defined by the California Health and Safety Code
- Minimally processed prepared food as defined in the California Food and Agricultural Code
- And alcoholic beverages as defined in the California Business and Professions Code
Additionally, the California Department of Public Health may issue regulations to exempt medical foods and infant formula from the definition of UPF.
Although the California definition of UPFs has no legal effect outside the context of the California school system, we expect that the plaintiff’s bar will attempt to leverage this definition in litigation. Additionally, we may see other states adopt similar definitions in laws that have broader effect.
If you have any questions about the California law, pending UPF legislation in other states, the joint FDA/USDA effort to define UPFs, or how to manage the risk of UPF class actions, our team is ready and able to assist.