That is good news for the California Food Safety Act, which is on the State Senate’s third reading calendar. Assembly Bill 418, introduced in February by Assemblymember Jesse Gabriel, D-San Fernando Valley,  seeks to ban harmful food additives already prohibited from use in the European Union. 

 The bad news is that the law bans certain substances as food ingredients and has to compete for Senate floor time with nearly 300 Assembly bills also looking for final passage.

It needs only a favorable Senate vote and the Governor’s sign-off to become law.

AB 418 has been amended on the Senate side, removing one substance from its banned food ingredient list. That substance is titanium dioxide, often added to foods to enhance white coloring or opacity.

To be added to food, titanium dioxide as an additive must achieve 99 percent purity. That still leaves room for small amounts of potential contaminants like lead, arsenic, or mercury.   Chewing gum, candy, pastries, chocolates, coffee creamers, and cake decorations are among food items that may contain titanium.

The U.S. Food and Drug Administration considers titanium dioxide safe, and apparently, so does the California Senate in that it’s been removed from the AB481’s list of banned substances.

Four ingredients remain on the banned list. They are Brominated vegetable oil, Potassium bromate, Propylparaben, and Red dye No. 3.

The first-time fine for anyone found violating the new law is $5,000, with each subsequent violation going to $10,000. California’s Attorney General and city and country attorneys are all empowered to bring charges under the statute.

By closing its marketplace to foods containing these substances, California will likely force many manufacturers to change recipes for foods distributed nationwide. This is not unlike the national change California is bringing about by closing its market to poultry and pork producers who do not meet its animal housing standards.

After Jan.1, 2027, under the bill, it will be illegal in California to manufacture, sell, deliver, distribute, hold, or offer for sale any food product for human consumption that contains any of the four products.

Two powerful consumer and environmental organizations, Consumer Reports and the Environmental Working Group have been helping move AB418 in Sacramento.

Senate summary of assembly bills

As of Sept. 7, 2023

Third Reading File AB 418 — Gabriel et al. An act relating to food.
2023

May 15 — Read the third time. Passed. Ordered to the Senate. (Ayes 54. Noes 12.)

May 16 — In Senate. Read the first time. To Com. on RLS. for assignment. May 24 — Referred to Coms. On Health and E.Q.
May 26 — From committee chair, with author’s amendments: Amend and re-refer to committee. Read a second time, amend, and re-referred to Com. on Health.
Jun. 29 — From committee: Amend, pass as amended, and re-refer to Com. on E.Q. (Ayes 10. Noes 0.) (June 28).
Jul. 3 — Read the second time and amend. Re-referred to Com. on E.Q. Jul. 12—From committee: Do pass and re-refer to Com. on APPR. (Ayes5. Noes 1.)

(July 12) — Re-referred to Com. on APPR.
Aug. 14 — From committee: Be ordered to second reading according to Senate Rule 28.8.
Aug. 15 — Read the second time. Ordered the third reading.
Sep. 1 — Read the third time and amend. Ordered to second reading. Sep. 5—Read a second time. Ordered the third reading.

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The amendment, which means the bill will need another vote by the California Assembly, appears to only add “human consumption” as a requirement for when certain substances are banned by AB-418.

The food safety bill says that “commencing Jan. 1, 2025, a person or entity shall not manufacture, sell, deliver, distribute, hold, or offer for sale in commerce a food product for human consumption that contains any of the following:

(1) Brominated vegetable oil (CAS no. 8016-94-2).

(2) Potassium bromate (CAS no. 7758-01-2).

(3) Propylparaben (CAS no. 94-13-3).

(4) Red dye 3 (CAS no. 16423-68-0).

(5) Titanium dioxide (CAS no. 13463-67-7).

The human consumption amendment was reported by the Senate Committee of Health’s chairman and was added by AB-418’s author, Rep, Jesse Gabriel. It was then read a second time, amended, and re-referred to the Senate Committee on Health.

As it went to the California Senate, legislative staff provided an analysis of AB 418 that included the following pro and con arguments.

Arguments in Support
Supporters such as the EWG, Consumer Reports, and Breast Cancer Prevention Partners state the chemicals this bill prohibits are chemicals associated with serious health risks, such as increased risk of cancer, harm to the reproductive system, and harm to the immune system. But because of the FDA’s inaction and regulatory loopholes, these chemicals are found in many food products, such as snacks, candy, and soda consumed by children in California and the United States.

EWG and Consumer Reports also state:

1. This bill does not interfere with ongoing federal regulation of food additives and federal law does not preempt state action on these additives;
2. Federal reviews of food additives are neither comprehensive nor active and regularly allow hazardous additives to be sold to consumers. The GRAS (Generally Recognized As Safe) loophole, originally meant for common ingredients, is exploited by companies who appoint industry-favoring panelists to designate chemicals as safe;
3. The FDA regularly fails to respond to petitions and meet other federal statutory requirements to restrict additives that pose public health risks. For example, Red dye no. 3 has been banned from cosmetics since 1990 and yet it continues to be allowed in food;
4. Existing California law does not restrict these toxic chemicals in food; and,
5. Ingredient and warning labels are insufficient alone to protect consumers.

Arguments in Opposition
A coalition of opposition that includes the Consumer Brands Association, the International Association of Color Manufacturers, the National Confectioners Association, and the American Bakers Association oppose this bill. The opposition indicates the federal government has a comprehensive food safety process that reviews food additives. In addition, California has several laws that require removing chemicals from foods, attaching warning labels, and checking alternatives if those food additives are unsafe or expose consumers to allergies. All five of these additives have been thoroughly reviewed by the federal and state systems and many international scientific bodies and continue to be deemed safe. They also claim that the food safety process is active and should be allowed to continue the appropriate review of these five and all additives. Several substances this bill proposes to ban are subject to petitions to these government entities initiated by many organizations supporting this bill. Scientific regulators work through these processes and make determinations to establish recognized safe thresholds. Then, when appropriate and supported by peer-reviewed scientific evaluations, they require additional labels or removal from the market. Additionally, the opposition points out that there is a comprehensive system that requires ingredient labeling allowing consumers to make informed decisions. The opposition concludes that the federal government and California have developed one of the world’s most robust and protective systems for food safety.

Pro or con, the analysis reports that according to the Assembly Appropriations Committee, the Department of Justice (DOJ) anticipates minor and absorbable costs as a result of this bill but notes as numerous bills this session may result in no significant impact on DOJ, should an aggregate of these bills become law, DOJ would need to request additional resources to process the increase to its workload.

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