Ultra-processed foods are a staple of diets throughout the nation. For many, these foods are more accessible, affordable and convenient due to their long shelf lives and ready-to-eat nature.
They’re also a very hot topic right now, receiving increasing attention from consumers, media, governments and courts. The regulatory, legal and reputational risks associated with ultra-processed foods have never been greater for food and beverage companies and they may have trouble keeping up with the constantly evolving regulatory landscape. In this time of uncertainty, food and beverage companies are wise to seek experienced legal counsel to assist with navigating this complex terrain.
Harris Beach Murtha’s Medical and Life Sciences Industry Team regularly tracks legislation at the federal, state and local level, as well as legal cases and other news pertaining to ultra-processed foods, so team members can keep clients informed, present topical information in conferences, seminars and webinars, and prepare cutting-edge trial strategy when defending food and beverage companies in lawsuits.
Here are five regulatory developments food and beverage companies should have on their radar.
1. Defining Ultra-Processed Foods
There is no legal federal definition of an ultra-processed food (UPF). The difficulty lies in the fact that the term “ultra-processed food” is as much a social and industrial classification as it is a nutritional one, grouping together a vast array of products with diverse impacts on health and nutrition.
Ultra-processed foods are commonly associated with the NOVA classification system developed by Brazilian researchers. This system groups foods based on the extent and purpose of food processing applied to them. NOVA classifies food into four groups: unprocessed or minimally processed foods; processed culinary ingredients; processed foods; and ultra-processed foods.
Under the system, UPFs are considered industrially manufactured products made up of several ingredients, such as salt, oils, fats, sugars, along with ingredients of little nutritional value, such as flavors, emulsifiers, dyes and artificial sweeteners. They’re typically high in refined grains, unhealthy fats, sugars and sodium. Generally, these foods are packaged and formulated for long shelf lives.
The U.S. Food and Drug Administration (FDA), which regulates food additives, recently joined forces with the U.S. Department of Agriculture (USDA) to seek public input on the subject, with a goal of establishing a uniform definition of UPFs. The government is examining processing methods, ingredients, dyes, nutritional elements and more. The FDA and National Institutes of Health (NIH) have also partnered on a program to accelerate research into the health effects of UPFs.
As you can imagine, this effort will likely be complicated. Foods under consideration contain vastly different nutritional profiles. They can contain ingredients considered “healthy” side-by-side with ingredients considered to be “unhealthy.” For example, are whole-grain cereals ultra-processed foods and unhealthy? How about plant-based milks? Fortified whole-grain bread?
The federal government’s effort is part of the Make America Healthy Again agenda. Robert F. Kennedy Jr., Secretary of the Department of Health and Human Services, has publicly proclaimed UPFs have led to increases in chronic diseases such as obesity, diabetes, heart disease and non-alcoholic fatty liver disease.
While there is no federal definition, some states have tried to define and regulate UPFs, albeit with limitations, usually pertaining to school lunches. Arizona and California have led in this effort.
2. California and Arizona’s Definition of UPFs
In April, Arizona enacted the Arizona Healthy School Act, prohibiting public schools from selling ultra-processed foods. Its definition of a UPF any food or beverage containing one or more of the following ingredients: (1) potassium bromate; (2) propylparaben; (3) titanium dioxide; (4) brominated vegetable oil; (5) yellow dye 5; (6) yellow dye 6; (7) blue dye 1; (8) blue dye 2; (9) green dye 3; (10) red dye 3; (11) red dye 40. This list is known as the “standard 11” additives.
California’s definition is much more elaborate. In October, Governor Gavin Newsome signed a law banning ultra-processed foods in school lunches. The definition of UPFs in the California law is lengthy, but it is summarized as any food or beverage containing high amounts of fat, sodium or sugar, defined as:
- Food or beverages containing 10 percent or greater of total energy from saturated fat;
- Food or beverages containing a ratio of milligrams of sodium to calories that is equal to or greater than 1:1;
- Food or beverage containing 10 percent or greater of total energy from added sugars;
and, in addition, some technical ingredient, such as emulsifiers, dyes, stabilizers, thickeners, flavor enhancers, aerators, gases, non-nutritious sweeteners, etc.
3. UPF Regulations in Other States
While California and Arizona have offered a definition of ultra-processed foods, they are not the only states with regulations or proposed regulations concerning the foods. Several other states have passed legislation banning certain additives in school lunches. Other states, such as Texas, Louisiana, Utah, Virginia, Georgia and Florida, banned certain additives in school lunches.
Other states, including Texas, Florida and Louisiana, now require warning labels on foods containing certain additives.
Several other states have varying regulations on UPFs under consideration.
One state, West Virginia, has outlawed artificial dyes and additives statewide. This ban is currently facing a legal challenge.
4. UPF Regulations in Other Countries
Several countries around the world are increasing regulations on ultra-processed foods. For example, the United Kingdom and Mexico are among countries that have implemented mandatory labeling systems that use color coding or warning symbols if a product has high levels of sugar, salt or and fat. Some countries are also adding taxes to these products and using the revenue for public health initiatives.
The United Kingdom and Mexico are also among the countries restricting marketing ultra-processed foods to children. For example, there are regulations prohibiting the use of
cartoon characters.
5. What UPF Regulations Mean for Food and Beverage Companies
Besides the obvious of needing to comply with all new state regulations, business could look quite different if federal efforts to define UPFs and designate them as harmful are successful.
Many believe the federal government will use the definition to limit what foods can be purchased by Supplemental Nutrition Assistance Program recipients and those participating in other federal food programs, including subsidized school lunches. It could also use the definition to require warning labels designating foods as ultra-processed and unsafe.
The government could even ban certain ingredients, such as it has done with Red Dye No. 3. This would send food and beverage businesses scrambling for alternatives, possibly leading to product shortages and reduced revenue.
A definition also will likely increase the number of lawsuits claiming UPFs lead to harmful health conditions, as it creates a new basis for consumer protection lawsuits and false advertising claims if marketing and advertising conflict with the official UPF classification.
The upsurge in regulatory efforts may be a catalyst for food and beverage companies to be proactive about ingredients, manufacturing, labeling, marketing and more.
What Should Food and Beverage Companies do About UPF Regulation?
An experienced attorney can help develop a plan that not only responds to active regulatory efforts, but evaluates the risk of past and future practices and proactively mitigates that risk. That plan should include:
Monitoring actions in Washington, D.C. and around the country to define UPFs, as well as any regulatory endeavors. Be prepared to respond.
Auditing ingredients. Can you proactively replace some that might be the target of lawsuits or regulation? Can you get that process moving in advance of such actions?
Reviewing marking and advertising claims. Ensure the products are being marketed in honest and lawful ways.
Consulting experts. The science on ultra-processed foods is not settled. Experts that counteract addiction theories will be useful.
Harris Beach Murtha’s Medical and Life Sciences Industry Team has the experience and knowledge to help your company navigate the rapidly evolving legal and regulatory landscape surrounding UPFs. For guidance, please reach out to attorney Kelly Jones Howell at (212) 912-3652 and khowell@harrisbeachmurtha.com, or to the Harris Beach Murtha attorney with whom you most frequently work.
This alert does not purport to be a substitute for advice of counsel on specific matters.
Harris Beach Murtha’s lawyers and consultants practice from offices throughout Connecticut in Bantam, Hartford, New Haven and Stamford; New York state in Albany, Binghamton, Buffalo, Ithaca, New York City, Niagara Falls, Rochester, Saratoga Springs, Syracuse, Long Island and White Plains, as well as in Boston, Massachusetts, and Newark, New Jersey.
