California Bans Four Common Food Additives and 26 Chemicals Used in Cosmetics

October 16, 2023

On Oct. 7, 2023, Gov. Gavin Newsom signed the California Food Safety Act (CFSA) into law, making California the first state to ban the manufacture, sale, distribution or delivery of food products containing four food additives commonly used in a number of popular candies, snacks and drinks.

The ban, which goes into effect Jan. 1, 2027, will effectively require food manufacturers to eliminate brominated vegetable oil, potassium bromate, propylparaben and red dye No. 3 from their products. Violations of the ban may result in penalties up to $5,000 for a first violation and $10,000 for each subsequent violation. However, it’s not clear how a “violation” will be counted — such as per unit sold or based on some other metric.

Newsom stated that the 2027 effective date grants companies ample time to “revise their recipes to avoid these harmful chemicals” in their food products. Blowback from the industry has been swift. The National Confectioners Association has already asked the U.S. Food and Drug Administration (FDA) to step in and engage with the issue, stating that the CFSA “replaces a uniform national food safety system with a patchwork of inconsistent state requirements created by legislative fiat that will increase food costs.” Although the FDA and the other states have not yet banned these additives from food products, all four additives currently are banned from food products in the European Union, and New York is advancing a similar bill through the state legislature.

Similarly, on Oct. 8, 2023, Newsom signed Assembly Bill 496 (AB496), an amendment to the 2020 Toxic-Free Cosmetics Act (TFCA), banning an additional 26 chemicals from personal care products, increasing the total number of banned chemicals from 24 to 50. While the 2020 version banning 24 chemicals goes into effect in 2025, the newly listed chemicals in AB496 won’t be banned until 2027. A list of the banned chemicals which commonly appear in shampoos and conditioners, hair dyes, makeup products, lotions and more — is available online.

As with the CFSA, proponents of the measure point to the fact that these ingredients currently are banned in the EU and argue that, absent action from the FDA, state bans such as the TFCA are a step toward making products safer for consumers. However, as with the CFSA, manufacturers, retailers and distributors are now left scrambling to comply with multiple regulatory frameworks.

Food and personal care product manufacturers, distributors and retailers should understand how these bans and future regulation may impact their operations going forward. For additional information or assistance regarding the CFSA or TFCA and AB496, please contact one of the authors of this alert.