Analysis from Harvard Law School’s Food Law and Policy Clinic finds the proposed federal FRESH Act would preempt hundreds of state laws—from additive bans and allergen warnings to restaurant inspections and cottage food laws—without creating equivalent federal safeguards.
8/25/2026 (BOSTON, MA) – As Congress considers the draft “FDA Review and Evaluation of Safe, Healthy, and Affordable Foods Act” (the “FRESH Act”), a new report from the Harvard Law School Food Law and Policy Clinic (FLPC) warns that the bill’s sweeping preemption clause could fundamentally upend how food safety is regulated in the United States.
The report, The Proposed Federal “FRESH” Act and The Impact of Its Preemption Provision (August 2026), authored by Margaret Lynn and Emily Broad Leib, takes the first comprehensive look at what the FRESH Act would mean for state and local food laws.
For more than a century, food safety has been governed through a cooperative federalism model. Federal laws like the 1906 Pure Food and Drug Act and the 1938 Food, Drug, and Cosmetic Act (FDCA) have set national baselines, while states have exercised their traditional “police powers” to protect the health and welfare of their residents – regulating restaurants and grocery stores, setting limits on contaminants, requiring menu disclosures, and taking early action on emerging hazards such as trans fats and harmful additives.
The FRESH Act would disrupt this balance. Its preemption provision would “supersede any and all State requirements or prohibitions” relating to the use, labeling, sale, or marketing of food, food additives, and even naturally occurring contaminants, without requiring that a federal rule be in place on the same issue. As drafted, this language would reach far beyond the narrow set of recent state additive bans that the legislation ostensibly aims to target.
“States have always been on the front lines of food safety,” said Emily Broad Leib, Director of the Harvard Law School Food Law and Policy Clinic and co-author of the report. “From banning dangerous ingredients to enforcing restaurant safety codes, they fill critical gaps that federal law doesn’t reach. The FRESH Act’s sweeping preemption language would wipe away much of that state authority, with no guarantee that equivalent federal protections will take its place. That’s not just a technical legal change; it’s a real risk to consumers’ health and safety.”
What’s at risk under the FRESH Act
The report finds that, as written, the FRESH Act’s preemption clause would clearly or likely displace:
- State food additive and chemical laws – including bans on particular additives and dyes and reporting requirements for “generally recognized as safe” (GRAS) substances that FDA has not reviewed.
- State and local labeling and warning requirements – such as on-package warning labels, menu icons for foods high in sodium and added sugars, restaurant allergen disclosures, and rules for labeling plant-based and cell-cultivated proteins.
- State limits and testing for contaminants – including state rules on heavy metals in spices, PFAS in food packaging and food-contact materials, and testing requirements for contaminants in baby foods.
- Retail food and restaurant regulation – including state and local food codes, permitting systems, inspections of restaurants and grocery stores, and required posting of restaurant letter grades.
- Cottage food and home kitchen laws – such as the state laws in all 50 states that allow small-scale food businesses to sell foods made in home kitchens under tailored safety rules.
- State manufacturing permits and inspections – registration and licensing systems for food facilities, including smaller facilities that are exempt from federal Food Safety Modernization Act (FSMA) requirements.
The FRESH Act does not condition preemption on the existence of a federal standard in any of these areas. That means long-standing state protections could disappear overnight with nothing to replace them.
“At a time when consumer protections for safe and healthy food are more important than ever, the FRESH Act threatens to undermine the essential safeguards our food system depends on,” Margaret Lynn, FLPC Student and co-author of the report, said. “As this memo makes clear, the bill would not create an effective regulatory regime; instead, it would enable industry lobbying to erode longstanding and essential state protections, leaving American consumers to bear the consequences.”
Regulatory gaps, FDA overload, and weaker remedies
The report warns that the consequences would extend beyond which level of government writes the rules.
If state regulations are preempted, oversight responsibility for retail food and food service establishments, currently handled by more than 3,000 state, local, and tribal agencies, would fall squarely on FDA. Yet FDA today has no direct jurisdiction over restaurants and most retail food settings, and the FRESH Act does not provide commensurate new resources or statutory tools.
Also, because the FDCA does not include a private right of action, broad preemption of “any and all state requirements or prohibitions” could also undermine state consumer-protection and tort claims that injured consumers and state enforcers currently rely on to hold companies accountable for unsafe or deceptively marketed food.
“This analysis should be a wake-up call for anyone who cares about safe and healthy food. Major food companies will stop at nothing to avoid accountability for the impact they have on our health, even if it means lobbying to broadly sweep away state laws that ensure food is made with safe ingredients, clearly labeled, and free of contaminants,” said Sarah Sorscher, Director of Regulatory Affairs for Center for Science in the Public Interest. “The FRESH Act is a death star for state food policy, indiscriminately threatening state laws that have been the core of the consumer protection movement for generations while eliminating critical opportunities for food system reform.”
“This memo confirms what we’ve been saying all along: the FRESH Act isn’t about food safety, it’s about wiping out a century of state protections in one stroke,” Melanie Benesh, Environmental Working Group Vice President for Government Affairs, said. “States have been the ones stepping up to ban toxic chemicals and warn families about what’s in their food, precisely because the FDA hasn’t kept pace. This bill would take that power away and give companies nothing in its place – no new FDA funding, minimal new FDA authority, just a regulatory vacuum where industry gets to police itself.”
A call for careful scrutiny of preemption
The authors emphasize that the FRESH Act is emerging in a context where states have stepped in to address significant concerns about chemical additives and contaminants in the food supply, often spurring later federal action. They urge lawmakers and stakeholders to scrutinize the bill’s broad preemption language and to consider alternatives that preserve meaningful state authority and avoid creating regulatory vacuums.
Read the full report, The Proposed Federal “FRESH” Act and The Impact of Its Preemption Provision, on the Harvard Law School Food Law and Policy Clinic’s website.
