Food Additives Under the Microscope: State and Federal Enforcement in the Age of MAHA
June 30, 2025
Dyes. Sweeteners. Emulsifiers. Flavors. Processing aids. Stabilizers. Everyday ingredients found in virtually every American pantry and refrigerator—the stuff of baking mixes and frozen dinners, salad dressings and ice creams—have come under new scrutiny in the age of MAHA. Whether it’s political rhetoric about “Making America Healthy Again,” state legislation, regulatory actions, or AG enforcement, nearly every level of government has taken aim at these ingredients.
Although the current federal and state enforcement landscape remains uncertain, food safety has already proved to be a bipartisan priority that crosses the ideological divide. The heightened government scrutiny of food additives in particular may lead to heightened enforcement risks and significant penalties for consumer brands.
The May 2025 Federal “MAHA Report.” A potential blueprint for enforcement actions is the Make Our Children Healthy Again: Assessment—the “MAHA Report”—released by the Make America Healthy Again Commission on May 22, 2025. The MAHA Report describes itself as a “call to action” to identify where and how policy interventions will have the greatest impact on children’s health, and it details what the Trump administration views as the primary drivers of childhood disease and chronic illness.
- “Ultra Processed” Foods. One of those drivers is the food that American children consume, with emphasis on “ultra-processed foods” (“UPFs”) and food additives and their potential impact on chronic disease. The MAHA Report defines UPFs broadly as “packaged and ready-to-consume products that are formulated for shelf life and/or palatability but are typically high in added sugars, refined grains, unhealthy fats, and sodium and low in fiber and essential nutrients.”1 But that terminology may change as the FDA recently announced plans to develop a new definition so that “markets can compete based on health,” according to FDA Commissioner Dr. Martin Makary.
- GRAS Rules. The MAHA Report also raises concerns about the health impacts of additives such as flavors, colorants, non-sugar sweeteners and emulsifiers, as well as ingredients Generally Regarded As Safe (“GRAS”). It calls for increased oversight and invites new GRAS-related regulations and enforcement.
New FDA Priorities. In recent public remarks, Commissioner Makary echoed the MAHA Report’s concerns about food additives, sharing his view that childhood chronic disease is a “crisis” that could potentially be solved by “healthier food for children.” Commissioner Makary highlighted chemical additives in foods as both an area of concern and an opportunity to pursue alternatives to diversify food options for Americans. Citing the recently announced ban on petroleum-based synthetic dyes in the nation’s food supply, Commissioner Makary stressed that the administration plans to “challenge deeply held assumptions” about food additives in the scientific community.
Most recently, on June 18, FDA released for public comment its proposed method for ranking chemicals in the food supply, the Post-market Assessment Prioritization Tool. The Tool uses Multi-Criteria Decision Analysis to determine a score for each chemical based on evaluating information about the chemical against a pre-determined set of criteria, which includes risk factors specific to exposure from food and uses a scoring method similar to FDA’s Risk Rank Model for Traceability.2 The higher the total score, the higher the priority of that chemical for post-market assessment. Chemicals that would receive the highest scores would have the following characteristics, among others:
- The chemical may produce severe health effects;
- Dietary exposure to the chemical has increased;
The chemical is found in or could potentially be present in food intended for “vulnerable subpopulations (e.g., infants)”; - There is “high attention” on the chemical from Congress, news media, and/or private organizations;
- Multiple other governmental agencies are making decisions or taking actions on the chemical; and
- Not assessing the chemical could result in the public losing confidence in the safety of the United States food supply.
State Legislation. The increased focus on food additives, including UPFs and GRAS foods, has also proliferated at the state level.
- Several states—blue and red alike—have enacted bans on particular food additives.3
- Other states have targeted labeling. Texas, for example, recently passed a bipartisan “Make Texas Healthy Again” bill that will require foods with certain specified food additives to be labeled with a warning that the ingredient is “not recommended for human consumption.”4
Red and Blue AGs. Both red- and blue-state attorneys general have zeroed in on ingredients too.
- Citing the use of artificial food coloring and preservatives, Texas Attorney General Ken Paxton recently opened investigations into two food companies over representations that their food is “healthy.”5, 6
- The Democratic Attorneys General Association’s Williamsburg Policy Conference in May 2025 featured a panel on “New Legal Frontiers in Food Policy.” Panelists included Peter Lurie, the President of the Center for Science in the Public Interest, a group that has actively sought the ban of artificial food coloring and other food ingredients it deems harmful.
- Significantly, at the same panel, Maine Attorney General Aaron Frey likened the AG community’s current focus on food additives to the “tobacco playbook.” He pointed to the theory that food companies have been using additives to increase profits and to specifically target children, while ignoring science that shows the associated harms. AG Frey signaled that such conduct could yield the next big bipartisan multistate investigation into whether certain brands have violated states’ Unfair or Deceptive Acts or Practices laws in marketing their products to consumers.
Given this newfound state and federal scrutiny, we expect to see increased enforcement activity from both state attorneys general and the federal government related to food additives. O’Melveny’s experienced professionals in the State Attorneys General Litigation & Investigations and Food, Beverage & Agribusiness groups have been closely monitoring these events. O’Melveny is available to assist with addressing any questions regarding these developments.
1 Id. at 21.
3 See California Food Safety Act A.B. 418 (banning brominated vegetable oil, potassium bromate, propylparaben, and red dye #3); Illinois S.B. 2637 (same); Missouri H.B. 2474 (same); Virginia S.B. 1289 (banning certain color additives in public elementary and secondary schools), H.B. 1910 (same); West Virginia H.B. 2354 (banning certain color additives from any food product sold in the state)
4 Texas S.B. 25
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Hannah Y. Chanoine, an O’Melveny partner licensed to practice law in Massachusetts and New York; David Deaton, an O’Melveny partner licensed to practice law in California; Houman Ehsan, an O’Melveny partner licensed to practice law in California; Lauren Kaplan, an O’Melveny partner licensed to practice law in California; Dawn Sestito, an O’Melveny partner licensed to practice law in California; Daniel R. Suvor, an O’Melveny partner licensed to practice law in California; Hannah E. Dunham, an O’Melveny counsel licensed to practice law in California and the District of Columbia; and Pooja Abhyankar, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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