Here is what’s on the regulatory horizon in 2024

While no one can predict the weather with complete accuracy, a trained meteorologist can spot the movement of a big storm. The same can be said for the regulatory climate. Given the trajectory established in 2023, it’s clear the food industry is in the path of legislative turbulence. There is momentum to restructure FDA and to reassess and potentially ban food additives. Also, there is an agenda in the recently introduced TRUTH in Labeling Act of 2023 to try to legislate a healthy diet. Part of the bill calls for monitoring sweeteners.

California’s recent ban of potassium bromate, propyl paraben, Red No. 3 and brominated vegetable oil demonstrated how swiftly food legislation can be passed. The bill, introduced in February 2023, was signed into law by Gov. Newsom in November.

Speed, however, is not always the case. Some of the bills introduced in 2023 at the federal level have yet to move forward. The Food Date Labeling Act of 2023 (S.1484), The No Toxics in Food Packaging Act of 2023 (H.R. 6105) and the Food Chemical Reassessment Act of 2023 (H.R. 3927) have not advanced since being referred to committees. That doesn’t mean they won’t pick up steam in the new year.

The recurring cast of characters who are intent on reshaping the food industry includes members of Congress whose passion leads them to sponsor bill after bill and advocacy groups who encourage and support these actions. For example, Sen. Richard Blumenthal brought the TRUTH in Labeling Act to the Senate. Previously, he introduced the Food Date Labeling Act. Rep. Janice Schakowsky brought the TRUTH in Labeling Act to the House. She is also credited with the No Toxics in Food Packaging Act. Schakowsky also introduced the Food Chemical Reassessment Act, which was endorsed by Environmental Working Group (EWG). California’s ban of additives also had the support of EWG.

Iris Myers, communications manager at EWG, offered the organization’s intentions for the new year: “In 2024, the Environmental Working Group will prioritize pushing for a safer, more equitable food supply. We will continue our pioneering work on getting harmful food chemicals regulated. We will also continue to work towards getting toxic heavy metals out of children’s foods and providing free information to consumers on pesticide residues on conventionally grown produce.

“Additionally, we will continue to push the Food and Drug Administration to do better,” Myers explained. “We are currently awaiting the FDA’s action on two food chemical petitions: one asking the FDA to revoke its approval of the use of titanium dioxide in food and one asking the FDA to finally ban Red No. 3 in food.”

In a recent webinar, Kristi Muldoon Jacobs, acting director of FDA’s Office of Food Additive Safety, admitted there is a lot of mistrust developing around additives that are  generally recognized as safe (GRAS). “Factual information, especially in the food space, is becoming a challenge,” she said. “But we really do value being a trusted choice of information and we are modernizing to get better. We’re looking for additional scientific and stakeholder perspectives.”

To that end, FDA is reevaluating additives such as Red No. 3 following the submission of a petition from EWG and several other advocacy groups. Jacobs said that anyone can petition the agency to reevaluate a substance. That opens the door for more additives to be questioned in 2024.

Eric Edmunds, JD, senior director of regulatory affairs and general counsel at The Acheson Group, also predicts FDA will be active. Following the lead of states such as California, he said, “We can expect to continue to see a focus on chemicals, heavy metals and food additives.”

California also signed a law requiring testing of baby food for arsenic, cadmium, lead and mercury to begin in 2024. “Similarly, in November, FDA proposed revoking the regulation authorizing the use of brominated vegetable oil,” Edmunds explained. “With both the states and the federal government focusing on these areas, the industry can expect such proposals and regulations to continue in 2024.”

Food safety is also top of mind, according to Edmunds. Referencing the USDA/FSIS FY2024 Annual Report, he said, “Salmonella reduction in poultry products will be a top priority in 2024, with the agency planning to publish a final determination to declare salmonella as an adulterant in not-ready-to-eat (NRTE) breaded stuffed chicken products. The industry can expect to see a continued overall focus on salmonella, with FSIS particularly spotlighting serotypes enteriditis, infantis and typhimurium, as those most commonly associated with human illness, with an intention to continue its work on the rulemaking to limit Salmonella in poultry products.“

Edmunds noted that healthy labeling claim requirements are somewhat outdated. FDA issued a proposed rule in late 2022 to revise the 1994 definition of the nutrient content claim “healthy.” “Although little was done on moving this forward in 2023, the definition of ‘healthy’ continues to be a hot button for the industry and consumers, so 2024 is likely to see some trajectory on the topic,” he said.

To qualify for a healthy claim, a food will need to contain a meaningful amount of fruit, vegetables, dairy or other food recommended by the Dietary Guidelines and adhere to specific limits for nutrients, such as saturated fat, sodium and added sugars.

The Dec. 14, 2023, Senate Health Committee hearing on the obesity and diabetes epidemic suggests the government’s intention to legislate consumer health. As evidenced by the proposed Truth in Labeling Act, this may be the beginning of a new era in food law as the government monitors and reports on the use of certain classes of ingredients or nutrients in products.