Illinois Jumps on the Food Ingredient ‘Banned’ Wagon

January 31, 2024

Illinois legislators recently joined California and New York in proposing bans on several food additives that a growing number of studies have shown to be harmful to human health.

Illinois Senate Bill 2637, originally introduced in November 2023, followed California’s lead in seeking to ban brominated vegetable oil (BVO), potassium bromate, propylparabens and Red Dye No. 3. The bill’s sponsor, state Sen. Willie Preston, indicated on Jan. 23, 2024, that he and fellow legislators intend to amend the bill to include titanium dioxide, which is included in the proposed New York ban introduced in 2023 (S60551). The Illinois proposal, if enacted, would take effect Jan. 1, 2027, the same time as the California ban, while the S60551 ban would go into effect Jan. 1, 2025 (if enacted). S60551 was referred to the New York Senate Agriculture Committee on Jan. 3, 2024, but has not had a hearing.

The Illinois Food Safety Act (IFSA) (SB 2637) closely mirrors the language of the California Consumer Food Safety Act (CFSA) — including proposing fines of $5,000 for a first violation and $10,000 for each subsequent violation for any person who manufactures, sells, delivers, distributes, holds or offers for sale any food product containing the substances — but is expected to include titanium dioxide in the ban. Titanium dioxide, an ingredient commonly found in certain candy (leading to the bill’s nickname, “Skittles Ban”), was included in the original version of the CFSA, but it was removed before enactment. Similar to the CFSA, it’s not clear whether a “violation” would be assessed per unit or based on some other metric.

Further, as McGuireWoods previously reported, shortly after the CFSA was enacted on Oct. 7, 2023, the U.S. Food and Drug Administration (FDA) proposed revoking the federal regulation that authorizes the use of BVO in food. The comment period for the FDA BVO proposal closed Jan. 17, 2024, with 41 public comments submitted. The FDA will review the public comments and determine if further action is needed or, more likely, issue a final rule. Pending the final BVO rule, FDA continues to review the status of Red No.3 and that of titanium dioxide.

McGuireWoods Consulting is monitoring the IFSA bill and working closely with Illinois stakeholders and national associations on the bill, and McGuireWoods attorneys continue to assess the IFSA, CFSA, S6055A and FDA actions on food ingredient bans. For assistance with any of these issues, please contact the authors of this article.