• On May 19, 2025, U.S. Secretary of Agriculture Brooke Rollins signed the first-ever waiver allowing Nebraska to restrict the use of Supplemental Nutrition Assistance Program (SNAP) funds to purchase certain “junk” foods and beverages, such as candy and soda. Beginning in January 2026, SNAP participants in Nebraska will not be able to use the benefits to purchase soda and energy drinks.
  • Previously, SNAP recipients could purchase any groceries except for alcohol, tobacco, hot foods, and personal care products. The waiver is part of the Make America Healthy Again agenda and “seeks to reverse alarming disease trends across the country.”
  • In April, Nebraska Governor Jim Pillen submitted a letter to Secretary Rollins notifying her of the state’s intent to pursue a SNAP waiver. According to Pillen, “[t]here’s absolutely zero reason for taxpayers to be subsidizing purchases of soda and energy drinks. SNAP is about helping families in need get healthy food into their diets, but there is nothing nutritious about the junk we are removing with today’s waiver.”
  • Several other states, including Arkansas, Colorado, Kansas, Indiana, Iowa, and West Virginia, have submitted requests to prohibit SNAP funds from covering certain foods or to allow the use of funds to purchase certain hot foods, such as rotisserie chicken. Many other states have active legislation seeking to restrict SNAP funding for certain products. While USDA has historically rejected waivers to restrict SNAP spending, Rollins supports “tak[ing] junk out of SNAP.”
  • Keller and Heckman will continue to monitor developments related to SNAP.
  • On May 16, 2025, the U.S. Food and Drug Administration (FDA) announced that it will host its first independent scientific expert panel on evaluating the use of talc in food, drugs, and cosmetic consumer products on May 20. The public roundtable will be led by FDA commissioner Dr. Martin Makary.
  • Talc, also known as magnesium silicate, is a naturally occurring mineral used in a variety of consumer products such as cosmetics (e.g., baby powder, face powders, deodorants), and food products.  Past FDA reviews have focused on inhalation, whereas this meeting is expected to discuss ingestion as well.
  • The roundtable will be taking place on Tuesday, May 20, 2025, at 10:00am. Meeting and registration information can be found here: FDA Expert Panel on Talc.  FDA has not yet disclosed the experts that will be on the panel.
  • Keller and Heckman will Continue to monitor developments related to talc and other regulated ingredients.
  • Keller and Heckman Partner Katie Bond and Associate Samuel Butler recently authored an article analyzing the implications of CalRecycle’s final material characterization study for recycling claims in California. The study is required by SB 343 (Pub. Res. Code § 42355.51(d)(1)(B)), and will likely be a primary determinant of what claims of recyclability can be made for products and packaging in California manufactured from the statute’s October 2026 effective date until the issuance of the next material characterization study, set for 2027.
  • SB 343 says that the purpose of the study is “to provide information to the public sufficient for evaluating” whether a particular item meets certain criteria for recyclability. Specifically, the study is to address (1) whether an item’s “material type and form is collected for recycling by recycling programs for jurisdictions that collectively encompass at least 60 percent of the population of the state”; (2a) whether “the material type and form is sorted into defined streams for recycling processes by large volume transfer or processing facilities … that process materials and collectively serve at least 60 percent of recycling programs statewide”; and (2b) whether “the defined streams [are] sent to and reclaimed at a reclaiming facility consistent with the requirements of the Basel Convention.”
  • Table 1 in the study addresses in a straightforward manner criterion 1, showing collection rates for various material types and forms as a percentage of the state’s population. Table 2 addresses the second part of criterion 2a, identifying the percentage of counties served by facilities that sort the identified material types and forms into outflows. Table 3 provides information about what materials were found in the processing facilities’ outflows, but this information does not in many cases provide a complete answer as to whether a particular material type and form is “sorted into defined streams” by the processing facilities. Citing a lack of authority to demand the relevant information, the study does not provide data addressing criterion 2b.
  • Following the release of a preliminary study and a revised preliminary study at the end of 2023 and 2024, the information included in the study is not surprising. The absence of full information to determine whether a material type and form is “sorted into defined streams” and “reclaimed at a reclaiming facility” is surprising, however, given the statute’s instruction that the study will provide “sufficient” information “for evaluating whether a product or packaging is recyclable.”
  • Keller and Heckman will continue to monitor developments related to recycling standards in California and nationwide and advise companies on their obligations under the new standard.
  • FDA and the Department of Health and Human Services (HHS) have launched a public Request for Information (RFI) to “identify and eliminate outdated or unnecessary regulations” in alignment with President Donald Trump’s Executive Order 14192.
  • Under the RFI, HHS Secretary Robert F. Kennedy, Jr. has committed to rescinding at least ten existing regulatory actions for every new regulation proposed. The effort is intended to “lower the cost of living, remove bureaucratic barriers, and allow health care providers to devote more time and resources to patient care.”
  • HHS intends to implement the following measures under the Executive Order:
    • The 10-to-1 rule: Eliminate at least ten existing regulations for every new regulation introduced.
    • Regulatory cost cap: The total cost of all new regulations in fiscal year 2025 must be significantly less than zero.
    • Expanded scope: The order applies to guidance documents, memoranda, policy statements, and similar directives, in addition to formal regulations.
    • Radical transparency: HHS will publish annual reports detailing estimated regulatory costs and the specific rules being offset.
  • According to FDA Commissioner Marty Makary, “[t]his initiative is about restoring common sense to health care regulation. . . .We welcome public input to help identify reforms that truly make a difference.”
  • During an FDA Update session at the Food and Drug Law Institute’s (FDLIs) Annual Meeting in Washington, D.C., FDA officials reiterated the Agency’s commitment to transparency and complying with the Executive Order while also working toward FDA’s priorities. For example, the Agency has moved forward with approving new uses for three non-certified color additives as part of the Agency’s strategy to phase out certified color additives, as we previously blogged.
  • The RFI’s 60-day public comment period opened May 13, 2025. Comments may be submitted through regulations.gov under docket AHRQ-2025-0001 or at regulations.gov/deregulation.
  • Keller and Heckman is available to assist in submitting public comments and will continue to monitor other FDA developments.
  • On May 15, 2025, FDA announced a three-part agenda “to increase transparency and ensure the safety of chemicals in our food.” This step follows from the Agency’s post-market activities last fall, where FDA published a discussion paper and held a public meeting to outline its plan for developing a robust post-market review process for chemicals in food and to seek input from stakeholders. It is unclear from the announcement to what extent the comments submitted to FDA in January 2025 have been considered, following FDA’s public meeting on the development of a post-market assessment program.
  • Regarding its current proposal, FDA’s initiative will include the following elements: (1) a modernized, evidence-based prioritization scheme for reviewing existing chemicals; (2) a final, systematic post-market review process shaped by stakeholder input; and (3) an updated list of chemicals under review. FDA will continue to share information about the status of this work on its public website as part the Agency’s push for greater transparency.
  • FDA’s updated list of substances in the food supply undergoing review includes butylated hydroxytoluene (BHT), butylated hydroxyanisole (BHA), and azodicarbonamide (ADA). All three of these substances have been targeted by Vani Hari, aka the Food Babe, indicating what appears to be an increase in her influence of the Make America Healthy Again (MAHA) agenda. The Agency also stated it will take steps to expedite substances currently under review, including titanium dioxide, for which FDA had determined in 2024 does not present a safety concern when used as a color additive for foods, phthalates, and propylparaben.
  • FDA’s announcement was concurrent with a presentation by Mark Hartman, Director of FDA’s Office of Food Chemical Safety, Dietary Supplements, and Innovation (OFCSDSI) at the Food and Drug Law Institute’s (FDLI’s) Annual Meeting in Washington, DC, where Hartman reassured the audience that, although a substance may undergo post-market review, this does not mean it is destined to be deemed unsafe. The OFCSDSI Director also relayed during his presentation that FDA is actively working on a rulemaking regarding self-GRAS determinations, a directive from HHS Secretary Kennedy on March 10, 2025. In this regard, Hartman shared that FDA is considering whether new chemicals should be allowed to continue to operate under a voluntary system or require mandatory GRAS Notice submissions, and which regulatory approaches should be used to address the lack of visibility on past self-GRAS positions.
  • Keller and Heckman is continuing to monitor these and other FDA developments. 

  • Yesterday Texas Attorney General Ken Paxton announced that it had sent General Mills a Civil Investigative Demand as part of a new investigation regarding the company’s marketing of its cereal products as “healthy” and a “good source” of vitamins and minerals despite containing what Texas calls “petroleum-based food colorings.”
  • The announcement alleges, without pointing to evidence, that a host of negative health outcomes can be attributed to these synthetic food colorings and voices support for the Trump administration’s battle against such colorings.
  • This move follows the Trump administration’s announcement of its planned phase-out of the use of synthetic dyes last month as well as a similar investigation against Kellogg by Texas, which was announced last month.
  • FDA and the Department of Health and Human Services (HHS) have announced the next steps in “Operation Stork Speed,” a program intended to enhance the “quality, safety, and nutritional adequacy” of infant formula products, as we have previously blogged. FDA issued a Request for Information (RFI) to begin the required nutrient review process for infant formula, which must meet minimum and maximum levels of certain nutrients.
  • Through the RFI, FDA is seeking public input regarding “whether existing nutrient requirements should be revised based on the latest scientific data, including international,” as well as potential adjustments to existing levels, additional nutrients to consider, and how these changes may improve health outcomes. Comments will be due 120 days after the RFI is published in the Federal Register, which is scheduled for May 14, 2025.
  • FDA will also increase testing for heavy metals and other contaminants in infant formula and food for children and is encouraging companies to work with the Agency on “enhancing transparency and improving labeling clarity.” FDA intends to convene a publicly accessible expert panel in June as part of the Operation Stork Speed initiative.
  • Keller and Heckman will continue to monitor the program and other developments related to infant formula.
  • On May 9, 2025, FDA and the National Institutes of Health (NIH) announced the launch of the new Nutrition Regulatory Science Program, a joint initiative to research diet-related chronic diseases and inform food and nutrition policy.
  • FDA and NIH touted the program as “a key element in fulfilling U.S. Department of Health and Human Services Secretary Robert F. Kennedy, Jr.’s commitment to Make America Healthy Again.” The Agencies stated that the program will allow them to “invest in gold standard science, prioritize a better understanding of the root causes to end the diet-related chronic disease crisis and safeguard the health of America’s children.”
  • The program is intended to answer (arguably leading) questions related to diet-related chronic disease such as:
    • How and why can ultra-processed foods harm people’s health?
    • How might certain food additives affect metabolic health and possibly contribute to chronic disease?
    • What is the role of maternal and infant dietary exposures on health outcomes across the lifespan, including autoimmune diseases?
  • FDA will contribute regulatory science expertise to the program, while NIH will provide infrastructure for scientific research, with experts in chronic disease, nutrition, toxicology, risk analysis, behavioral science, and chemistry contributing to the program. The Agencies said that they will work together to develop a research agenda and ensure that all research is fair, independent, and free of conflicts of interest.
  • Keller and Heckman will continue to report on developments related to the new program.
  • On May 9, 2025, the U.S. Food and Drug Administration (FDA) announced the approval of three new food color additives derived from natural sources.  This development follows the agency’s late-April announcement of its intension to collaborate with industry stakeholders to phase out the use of petroleum-based synthetic food dyes.  As part of this broader initiative, FDA had committed to authorizing new natural color additives and expediting the review process for others already under consideration.  
  • The newly approved color additives include:
    • Galdieria extract blue, derived from the red algae Galdieria sulphuraria, was originally petitioned September 9 2021 (86 Fed Reg 50495). It is now approved for its use in a wide range of products including nonalcoholic beverages, fruit drinks, smoothies, juices, yogurt products, breakfast cereal coatings, candy, and other desserts.
    • Butterfly pea flower extract, originally approved in September 2021 for limited uses such as beverages and confections at 21 CFR 73.69, was petitioned for expanded use February 8, 2024 (89 Fed Reg 8537). It is now approved for expanded uses including ready-to-eat cereals, crackers, snack mixes, hard pretzels, and various forms of chips.
    • Calcium Phosphate, a white color additive derived from a naturally occurring mineral, was petitioned February 27, 2023 (88 Fed Reg. 12281) and has now been approved for use in ready-to-eat chicken products, white candy melts, doughnut sugar, and sugar for coated candies.
  • Notably, during the press hearing, the agency had indicated it would authorize four new color additives.  However, only three were ultimately approved, with gardenia blue not included in the announcement for the newly authorized colors.
  • Keller and Heckman will continue to monitor developments related to the authorization or revocation of color additives.
  • On May 8, 2025, the U.S. Food and Drug Administration (FDA) extended the public comment period for its proposed rule on front-of-package (FOP) nutrition labeling by 60 days.  Stakeholders now have until July 15, 2025, to submit feedback.
  • The extension comes in response to requests for more time to review and comment on the proposal. The proposed rule, announced January 16, 2025, would require most packaged foods to display a simplified “Nutrition Info” box on the front of the package.  The box would highlight the level of three nutrients of public concern: saturated fat, sodium, and added sugars, using descriptive terms such as “low,” “med,” or “high.”
  • The rule is part of a broader initiative at the agency to reduce diet-related chronic diseases and is intended to provide consumers with a quick and easy way to understand nutrition information related to packaged food products.
  • Comments can be submitted via Regulations.gov under docket number FDA-2024-N-2910. Keller and Heckman can assist in drafting or submitting comments on behalf of interested parties.