As we have previously discussed, state and federal government authorities are turning their attention toward artificial coloring in foods. Most recently, Texas Governor Greg Abbott signed into law SB 25 targeting the sale of foods containing certain color and food additives in the state. SB 25, set to take effect on January 1, 2027, differs from legislation passed in California, Utah, and West Virginia in certain key respects.
Utah, for example, restricts the sale of foods containing only certain color additives. California and West Virginia have similarly passed legislation restricting both artificial color and food additives in food but, as with Utah, California and West Virginia completely prohibit using the named ingredients in food. Conversely, SB 25 requires food manufacturers to place warning labels on items containing certain artificial colors and additives.
Labeling Requirements
The law applies to packaged foods and beverages sold in the state containing any one of 44 specific food dyes or additives, including Red Dye 40, Yellow Dye 5, titanium dioxide, partially hydrogenated oils, olestra, and bleached flour. Specifically, the law requires the packaging labels to state “WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.”
The law excludes restaurant foods and ready-to-eat products prepared onsite for immediate consumption. Beginning January 1, 2027, any new product packaging developed or copyrighted for affected foods after such date must carry the warning label in a clearly visibly location on the product packaging.
Enforcement Under SB 25
Enforcement authority over regulated entities under SB 25 is vested in the Texas attorney general’s office, and no private right of action is provided to consumers or advocacy groups. That said, SB 25 can still influence the litigation landscape. For example, plaintiffs have frequently brought class actions under state consumer protection statutes (including Texas’s Deceptive Trade Practices Act) for allegedly misleading labels such as “natural” or “healthy.”
Evidence of noncompliance with SB 25’s stringent warning label requirements could potentially support claims that the lack of appropriate warnings is misleading advertising, even if the additives can be legally included as ingredients under federal law.
Violations of the law carry penalties of up to $50,000 per product per day as well as liability for legal costs incurred by the state for enforcement. Under the law, manufacturers of food products have the option to either reformulate products to remove affected additives, redesign packaging to comply with the new labeling standards, or withdraw affected products from the market in the state.
Implications for Industry
SB 25 is the latest state effort to address the uses of alleged unhealthy color and food additives. The Texas law differs from laws passed in California, Utah, and West Virginia as the Texas law does allow the alleged “unhealthy” products to continue to be sold in the state so long as they carry the appropriate warning label.
The impacts of the Texas bill are considerable as manufacturers will have to work quickly to use up noncompliant packaging inventory, reformulate without the identified ingredients and repackage, repackage with warning labels, or stop selling in Texas—a sizeable market—to comply with the law. Further, manufacturers will have to navigate logistical challenges of a patchwork regulatory system as more states pass legislation with different requirements and restrictions for foods containing certain color additives.
Takeaways
- Texas has joined California, Utah, and West Virginia in passing legislation regarding the use of certain artificial color and/or additives in food.
- Unlike California, Utah, and West Virginia, which completely ban certain additives in food, SB 25 requires warning labels—foods containing any one of 44 different additives, including certain color additives, will soon come with a warning.
- Manufacturers will have to quickly repackage and rebrand foods to be in compliance with state legislation by the January 1, 2027 compliance date.
- Financial penalties for noncompliance with the law are significant, and noncompliant packaging may be subject to challenge under state false advertising laws.