Slippery slope? US confectionery association slams “unscientific” California food additives ban

19 Oct 2023 --- The recent California law banning red dye No.3 and other food additives — slated to start in 2027 — is “unscientific and unnecessary,” according to the National Confectioners Association (NCA) which has hit out at the new legislation, claiming the cost of reformulation will be substantial.

Christopher Gindlesperger, senior vice president of public affairs and communications at the NCA, tells Food Ingredients First the ban will likely create “a slippery slope” — “and when it comes to ingredient and food safety, the US Food and Drink Administration (FDA) should be making those decisions at a national level.”

The NCA believes “we need a uniform national food safety system in this country, not a patchwork of inconsistent state requirements that increase food costs.”

The US Department of Agriculture (USDA) estimated that it could take a decade or longer to develop and obtain FDA approval for a safe replacement for a color additive, outlines Gindlesperger.  

USDA estimates that it could take a decade to develop and obtain FDA approval for a replacement for color additives.“This impact is particularly relevant in today’s inflationary environment as consumers are feeling the pinch when it comes to the high cost of groceries, and the cost of reformulation will be substantial and ultimately passed on to consumers in the form of higher prices,” he says.

State bans 
As we reported last week, California will become the first state in the US to ban chemicals, including red dye No. 3, potassium bromate, brominated vegetable oil and propylparaben, because of their potential link to health issues like cancer and behavioral problems in children. 

The NCA claims the will undermine consumer confidence and create confusion.

In a public letter from NCA president and CEO John Downs to FDA Commissioner Robert M. Califf, the NCA urged the food authority to get more involved and “defend its legal, fiduciary and moral responsibility,” as the country’s chief and centralized food safety agency.

“As you know and might agree, Governor Newsom and the California legislature, in enacting AB  418, have completely overstepped their area of expertise, telling the American people that the Biden Administration’s FDA is incapable of keeping the food supply safe by implementing a ban on certain food ingredients through legislative fiat,” the letter reads.

“Undoubtedly, the action in California has led and will lead to similar legislative proposals in other states which could result in bans of additional food ingredients that completely decentralizes FDA’s authority and create a massive patchwork of requirements for US food manufacturers.”

“We are faced with a lack of federal expertise and authority which is needed to dispel myths and consumer confusion permeating from California and correct misinformation related to the food ingredients and additives that were banned in that state.” 

“Food expert and toxicologist James Coughlin called the entire process in California ‘unnecessary and unscientific’ — and we in the confectionery industry agree with him. The organizations behind California’s new law are openly calling for replacing FDA’s authority with a state-by-state patchwork of laws wherein state legislators make food safety decisions without any scientific basis.”

The letter goes on to state that the broader food industry and US consumers need to know that the FDA is prepared to prevent that slippery slope from becoming a reality and that it continues to evaluate, at a national level, the safety of food ingredients and additives. 

“Decisions regarding the safety of the US food supply belong in the hands of our foremost food safety experts, not politicians.”

“Food safety is the number one priority for US confectionery companies, and we do not use any ingredients in our products that do not comply with the FDA’s strictest safety standards.”

What are the alternatives?
There are currently limited alternatives for some of the ingredients subject to the California ban. 

The USDA estimates that it could take a decade or longer to develop and obtain FDA approval for a safe replacement for a color additive. 

Conagen, a biotechnology company in Massachusetts, US, has constructed a carminic acid pathway compatible with its proprietary fermentation technology. The development of the intense red pigment is hailed as being environmentally friendly and an alternative to traditional carminic acid extraction methods.

Casey Lippmeier, SVP of innovation at Conagen, tells us: “In the food industry today, there is a crisis in food colorings. Every manufacturer using synthetic dyes, like red dye food color No.3, is seeking a natural alternative.”

“Some of the alternatives out there include beet juice, and there are a few others, but none of them have quite the same performance characteristics as the artificial red dye, except for carminic acid. Carminic acid, derived from a Cochineal insect, the Dactylopus coccus beetle, is a potential solution, but its extraction is very costly and supply-constrained today. We developed a better alternative made by biology, with the aim of replacing the widely used artificial red dye and expanding into new markets,” he explains.

Carminic acid is a commonly used, natural red food colorant designated as Natural Red Dye No. 4 in the US or E120 in the E.U.  California will become the first state in the US to ban chemicals because of their link to health issues.

It is widely used in processed foods, beverages, drugs and cosmetics, and it competes in some of these applications with the artificial “azo” Red Dye Number 40. The molecule is normally extracted from several insect species, including Dactyloius coccus (cochineal) living on Opuntia cacti.

“This development is an important step forward for the food, cosmetics, and textile industries, as it offers a natural and sustainable alternative to certain synthetic dyes, which carry warning labels in some countries,” continues Lippmeier. “Our carminic acid is another great example of a product made from our bio-solutions production platform.”  

Relieving supply chain challenges 
Conagen’s production platform makes it possible to produce and scale high-quality carminic acid in volumes up to thousands of tons, relieving supply chain challenges and potential allergenicity issues posed by incumbent insect-based sources. 

The fermentation process provides a stable supply of high-quality carminic acid, allowing for greater control over future production quantity and quality.

While carminic acid is not directly harmful to the environment, its traditional production requires large amounts of water, which can strain local water resources in areas where water is scarce. This can lead to water scarcity, drought and other negative impacts on local ecosystems and wildlife.

By Elizabeth Green