By Will Kubzansky and Rachel Cohrs Zhang
(Bloomberg) -- A Texas bill on the verge of becoming law
would require labels on packaged food from Skittles to Mountain
Dew that warn about ingredients “not recommended for human
consumption” by other countries.
Texas Senate Bill 25, backed by Secretary of Health and
Human Services Robert F. Kennedy Jr., is now awaiting the
signature of Governor Greg Abbott. Foods containing certain
ingredients would require warning labels on new packaging
beginning in 2027 in order to be sold in Texas, which is the
second-most populous US state with 31 million residents.
The bill lists more than 40 ingredients, including
synthetic food dyes and bleached flour. Many, but not all, of
the additives are banned or require warnings in other countries.
If approved, the impact on the packaged-food industry could
be far reaching: When companies are forced to comply with state
regulations, they have often opted to adopt those changes
nationwide to streamline production. It would also mark one of
the most substantive victories yet for the Make America Healthy
Again movement, Kennedy’s signature effort.
The bill’s supporters have said it has Kennedy’s backing:
Representative Lacey Hull, a state lawmaker who was one of the
bill’s sponsors in the House, said she received a call from him
when it passed the legislature. Abbott has yet to commit to
signing the bill, however.
“Governor Abbott will continue to work with the legislature
to ensure Texans have access to healthy foods to care for
themselves and their families and will thoughtfully review any
legislation they send to his desk,” Andrew Mahaleris, his press
secretary, said in a statement to Bloomberg News before the bill
reached Abbott on June 1. The governor’s office didn’t respond
to an updated request for comment.
Texas is seen as one of the most business-friendly states
in the US, with no state income tax for individuals and
generally a lighter approach to regulations.
If Abbott signs the bill, “he will go down as a historical
figure as the man who broke the food industry’s back on these
chemicals,” said food activist Vani Hari, also known as Food
Babe. “This is something that will spawn incredible change
within the food industry.”
HHS didn’t respond to a request for comment.
Carve-Out
The bill contains a possible carve-out: If either the Food
and Drug Administration or Department of Agriculture deem an
ingredient safe, restrict its use, including by adding their own
warning, or ban it outright after Sept. 1, the state’s own
labels for that ingredient won’t be required. And if the federal
government mandates labeling for “ultra-processed or processed
foods,” that would also supersede Texas’ required labels.
But if the FDA, which falls under Kennedy’s jurisdiction,
doesn’t declare the listed ingredients safe or offer new
qualifications for their use, the warnings would be required for
new food labels developed and copyrighted starting in 2027.
While some of the ingredients slated for warning labels,
such as titanium dioxide and bleached flour, are more highly
regulated in other countries, others, like the emulsifier DATEM,
have less stringent regulations.
Affected Foods
A wide range of foods would require a warning label on new
packaging to be sold in Texas under the bill, barring changes in
formulation. These include Mars Inc.’s Skittles and M&Ms, WK
Kellogg Co.’s Froot Loops, PepsiCo Inc.’s Mountain Dew and Nacho
Cheese Doritos, which use synthetic dyes.
HHS and the FDA said in April that they’ll work with food
producers to eliminate the dyes by the end of 2026. Industry
groups have said no agreement exists on the matter.
BHT, a preservative listed in the Texas bill, is found in
cereals like General Mills Inc.’s Cinnamon Toast Crunch. BHA,
which is also listed, is present in deli meats, but the bill
exempts foods regulated by the USDA’s Food Safety and Inspection
Service, which oversees meat, poultry and eggs.
Pastries such as General Mills’ Pillsbury Toaster Strudel
and Entenmann’s Little Bites Chocolate Chip Muffins, made by
Grupo Bimbo SAB, use bleached flours. Titanium dioxide, used for
coloring and shine, is used in Mondelez International Inc.’s
Sour Patch Kids Watermelon.
Other products that would be affected include white breads
made by Wonder and Sara Lee brands and Campbell’s Company’s
Pepperidge Farms, which all use DATEM.
The bill would require the warnings appear in a font size
that’s no smaller than the smallest text for other FDA-required
information. The wording would need to appear in a “prominent
and reasonably visible location” and have “sufficiently high
contrast.”
Industry Letter
Industry groups and companies including PepsiCo, Mondelez,
Coca-Cola Co., Conagra Brands Inc., and Walmart Inc. sent the
Texas legislature a letter dated May 19 urging lawmakers not to
pass the initiative.
“As it’s written, the food labeling provision in this bill
casts an incredibly wide net — triggering warning labels on
everyday grocery items based on assertions that foreign
governments have banned such items, rather than on standards
established by Texas regulators or by the US Food and Drug
Administration,” the companies and groups wrote in the letter.
Walmart said it continuously monitors legislation that
could affect the company’s operations, and recommended Bloomberg
News reach out to the Texas Retailers Association.
“Texas retailers and our members including Walmart worked
hard on this bill, made some changes, and we’ll see how it
develops over the next 20 days,” said Gary Huddleston, grocery
industry consultant at the Texas Retailers Association. Abbott
has 20 days after the end of the legislative session, which
concluded Monday, to sign the bill.
Conagra declined to comment. The other companies didn’t
respond to a request for comment.
The Consumer Brands Association, an industry group for some
of the country’s largest food companies, urged Abbott to veto
the bill.
“The ingredients used in the US food supply are safe and
have been rigorously studied following an objective science and
risk-based evaluation process,” said John Hewitt, senior vice
president of state affairs for CBA. “The labeling requirements
of SB 25 mandate inaccurate warning language, create legal risks
for brands and drive consumer confusion and higher costs.”
Jura Liaukonyte, a professor of marketing and applied
economics at Cornell University, said state laws have had a
wider impact on the industry in the past, including a Vermont
law from about a decade ago that briefly required foods to
disclose the use of most genetically modified organisms. This
caused some companies to add the labels nationwide, according to
her research. Similarly, California’s Proposition 65 product
warnings have spread to some products nationwide, she said.