New FLPC report analyzes the breadth of state authority to regulate additives and ingredients in the food supply

By Emily Broad Leib, Director, Food Law and Policy Clinic

In 2025, more than 30 states introduced nearly 120 bills aimed at curbing the use of additives and other substances in food linked to health harms. This unprecedented state action reflects growing concern about the gaps in the federal regulatory system for food ingredients. These state bills include bans on additives in the food supply, restrictions on the use of certain additives in school meals, disclosure requirements of the use of substances deemed “generally recognized as safe” (GRAS) by manufacturers, and mandates for warning labels on foods containing certain additives. As of November 2025, 17 of these bills had been enacted in states across the country.

As we gear up for state legislative sessions to start again in January 2026, it is likely that more states will introduce and enact legislation in this area. Many policymakers, public health advocates, and other stakeholders are trying to better understand the power that states have to enact these sorts of policies, and where that authority may be limited by federal preemption.

Today, the Food Law and Policy Clinic released a new report, State Regulation of Food Additives and Chemicals: Preemption, the Commerce Clause, and the Breadth of State Authority, analyzing the legal landscape surrounding the surge of state legislation addressing harmful chemicals in food.

The report finds that most state actions to protect residents from harmful chemicals or ingredients in food are on strong legal footing. State bans on additives or dyes, school-based restrictions on these products, and GRAS disclosure requirements are unlikely to be preempted by federal law and do not violate the Commerce Clause (in looking at dormant Commerce Clause jurisprudence). These policies fall squarely within states’ “police power,” or the traditional authority held by states to protect public health and safety—an authority long recognized by courts.

State warning-label requirements are somewhat more complex. State-mandated warnings may face express preemption if applied to meat and poultry products, which are regulated by USDA (as opposed to the majority of food products, which are regulated by FDA). In addition, certain warning requirements could trigger conflict-preemption challenges if they directly contradict federal nutrition objectives. Nonetheless, with careful drafting—such as exempting USDA-regulated products—states can mitigate these risks. There is also strong precedent that supports state authority to require warning labels on food products.

There are significant shortcomings in the federal regulatory system that have spurred this spate of state policy. FDA’s limited oversight of additives, especially the under-regulation of substances entering the market through the “generally-recognized as safe” (GRAS) exemption to the additive definition, has allowed risky substances to be used in food and left regulators without a complete record of substances used in food. Meanwhile, FDA has been slow to reevaluate chemicals already approved for use, sometimes taking decades to respond to emerging evidence of harm.

In response, starting with enactment of two laws in California in 2023 (banning four substances in food) and 2024 (banning synthetic color dyes in school meals), many states have introduced a range of bills to reduce use of risky additives, as noted above. In many cases, state action has also spurred federal actions such as the recent federal bans of red dye No. 3 and brominated vegetable oil, which followed California’s 2023 ban that included these two substances.

Overall, FLPC’s report emphasizes the substantial authority states possess to act on food ingredient safety—and the essential role they play in advancing public health amid the insufficiency of federal regulation in this space. As states continue to innovate in response to public health concerns surrounding the food supply, these policies not only provide immediate protection for residents but also help drive broader national change. Given the need and their ample authority, states are and will continue to be crucial leaders in building a safer, more transparent food system.

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