Search results for: preservative

  • The Wisconsin State Assembly introduced Wisconsin Assembly Bill 550 (AB 550) on October 15, 2025. The bill proposes a mandate that manufacturers of packaged food products intended for human consumption must include prominent warning labels if the product contains any of the fifty-one ingredients listed in the bill.
  • Ingredients that would require a warning label include certain artificial colors, sweeteners, preservatives, and other additives, including the FD&C certified colors, titanium dioxide, butylated hydroxyanisole (BHA), butylated hydroxytoluene (BHT), acesulfame potassium, and more. Foods containing these ingredients would be required to bear the label “WARNING: This product contains an artificial color, chemical, or food additive that is banned in Australia, Canada, the European Union, or the United Kingdom.”
  • The bill follows similar laws that were recently enacted in Texas and Louisiana, as we previously blogged. Unlike the Texas law, there is no preemption provision in AB 550.
  • Keller and Heckman will continue to monitor this and other bills related to food labeling.
  • The Campbell’s Company has been sued (Law360 subscription required) for allegedly falsely advertising its Cape Cod Kettle Cooked Potato Chips as containing “no artificial colors, flavors, or preservatives,” despite containing citric acid, which is synthetic, according to the complaint.
  • The plaintiff alleges that the label on the Cape Cod chips “puts forth a straightforward, material message: the Products contain only coloring, flavoring and preservative ingredients that are natural and not synthetic.” According to the plaintiff, the claims are made to “capitalize on the growing market for natural products,” for which consumers are willing to pay a premium.
  • The complaint further alleges that natural citric acid is no longer commercially available, and only synthetic citric acid is used in packaged foods. Further, the complaint cites FDA Warning Letters from 2001 that state products could not be labeled as “natural” because they contained citric acid.
  • Finally, the complaint states—without citing to any evidence—that synthetic citric acid consumption has been linked with various adverse health effects.
  • Keller and Heckman will continue to monitor this and other food related litigation.
  • On August 26, 2025, The New York City Health Department and the Mayor’s Office of Food Policy announced the release of its updated NYC Food Standards. The updated standards are a part of NYC’s broader Chronic Disease Strategy which targets conditions like diabetes and cardiovascular disease through dietary improvements. The updates standards will take effect on July 1, 2026.
  • The updated standards include:
    • Expanded restrictions on low-and no calorie sweeteners, now applying to all age groups whereas previously it was limited to children under 18;
    • New bans on artificial colors, flour additives, and preservatives; 
    • Elimination of processed meats from all meals served;
    • Increased requirements for whole and minimally processed plant proteins; and
    • Stricter snack guidelines to improve nutritional quality.
  • Specifically, the prohibition applies to aspartame, stevia, sorbitol, FD&C Blue No.1, FD&C Blue No.2, Caramel Color, Citrus Red, Titanium Dioxide, Potassium Bromate, Butylated hydroxyanisole (BHA), and Propylparaben, among others.
  • NYC’s Food Standards were first introduced in 2008 and are now mandated to be updated every three years. The standards apply to meals served by agencies such as the Department of Education, Health and Hospitals, Department of Correction, and Human Resources Administration among others.
  • Keller and Heckman will continue to monitor developments related to municipal nutrition standards and changes to public health policy.
  • The 9th Circuit Court of Appeals affirmed the dismissal (Law360 subscription required) of a class action alleging that Del Monte Foods, Inc., falsely advertised its “Fruit Naturals” fruit cups as “natural” despite containing synthetic preservatives. The original lawsuit was filed in early 2023 and dismissed in October of that year.  
  • The fruit cups, which are labeled as “Fruit Naturals,” contain ingredients like potassium sorbate and methylcellulose gum. According to the plaintiff, Del Monte did not disclose that these ingredients are synthetic, and consumers are not “expected or required to ‘scour’ a product’s listed ingredients” to determine whether products are, in fact, natural. However, the district court found that, because the ingredients are specifically listed on the back label, the label was not “unambiguously deceptive” because the “front label, as clarified by the back label, [would not] mislead a reasonable consumer into thinking that the products don’t contain synthetic ingredients.”
  • In affirming the district court ruling, a 9th Circuit panel found that a survey cited by the plaintiff to support the deceptive nature of the label was uninformative because it asked respondents about the adjective “natural,” rather than the noun “naturals.” Here, the word is used as a noun in the name of the product. Further, the label depicts the picture and name of the fruit in the cups followed by the phrase “in extra light syrup.” This conveys that the fruit itself is natural, but the syrup may not be.
  • According to the panel, the labels are ambiguous, meaning that “’reasonable consumers would necessarily require more information before they could reasonably conclude’ that the front label makes a specific factual representation.” A reasonable consumer would look to the back label, which, here, “accurately and clearly discloses several synthetic ingredients,” thus resolving the ambiguity.
  • On June 27, 2023, the European Parliament’s Environment, Public Health and Food Safety Committee (ENVI) narrowly voted against a proposal to lower the maximum permitted limits for the food additives sodium and potassium nitrites (E 249-250) and sodium and potassium nitrates (E 251-252) because the proposed limits did not go far enough. Instead, a motion has been proposed that would ban the use of nitrites and nitrates in the EU following a four-year phase out period.
  • Nitrates and nitrites are widely used as preservatives in cured meat products such as bacon, ham, cold cuts, charcuterie, and some cheeses. Those in favor of a reduction and not a ban argued that nitrate/nitrite-free products are more expensive and therefore less accessible to some consumers.  In contrast, those in favor of a total ban cited the health concerns raised by the European Food Safety Authority (EFSA)’s January 2023 risk assessment on N-nitrosamines in food. N-nitrosamines are reaction products of nitrates and nitrites in certain food processing conditions. Many N-nitrosamines are genotoxic and carcinogenic and are associated with increased incidence of colorectal cancer.  However, the report also highlighted many uncertainties, including the levels at which N-nitrosamines are found in food products. 
  • The use of nitrates and nitrites as food additives has been restricted in certain EU member states such as in Denmark.  In the United States, nitrates are subject to a number of clearances, subject to certain limitations.  See e.g.  9 CFR 424.21(c) and 21 CFR 172.160, 172.170, and 172.175.
  • Keller and Heckman will continue to monitor the regulation of food additives in the EU.

  • Yesterday, FDA launched its new Dietary Supplement Ingredient Directory which contains a list of ingredients used in dietary supplements along with links to FDA’s actions and communications regarding the ingredients.
  • The Ingredient Directory will contain information on the two types of ingredients found in dietary supplements: “dietary ingredients” and “other ingredients.” A “dietary ingredient” is defined (in 21 USC § 321(ff)) as a vitamin; mineral; herb or other botanical; amino acid; dietary substance for use by man to supplement the diet by increasing the total dietary intake; or a concentrate, metabolite, constituent, extract, or combination of any dietary ingredient from the preceding categories. “Other ingredients” include ingredients such as fillers, binders, excipients, preservatives, sweeteners, and flavoring, and are listed separately on the label.
  • The Ingredient Directory will be periodically updated. However, it is not intended to be a comprehensive list of all ingredients used in dietary supplements and may not include all actions that the FDA has taken on a particular ingredient. For example, some duplicative actions or actions that no longer reflect the FDA’s current position may not be listed.
  • FDA’s Dietary Supplement Advisory listserv has been retired, but anyone subscribed to that list will receive updates to the Ingredient Directory.
  • On January 18, USDA published a final rule expanding the criteria of generic label approval for inspected meat, poultry, and egg products. The Expansion of Generic Labeling Rule is largely consistent with the proposed rule published in September 2020, which proposed to discontinue review of generically approved labels and expand the circumstances under which FSIS will generically approve food labels under its jurisdiction. Notably, the final rule does not eliminate the requirement to comply with USDA’s labeling regulations, but instead shifts the burden of compliance for generic labels onto the manufacturer.
  • Under the current regulations, FSIS evaluates sketches of some labels for approval, and approves others generically without submission to FSIS for sketch approval. To obtain sketch label approval, domestic meat and poultry establishments, egg product plants, and certified foreign establishments that are eligible to export product to the United States, or their representatives, are required to submit sketch labels to FSIS for evaluation, except when the label is generically approved by the Agency under 9 CFR 412.2. FSIS allows certain meat, poultry, and egg product labels that bear all required labeling features and that comply with the Agency’s labeling regulations to be generically approved (9 CFR 412.2(a)(1)). Generically approved labels do not need to be submitted to FSIS for sketch approval before they can be used on products in commerce. Generic label approval requires that all mandatory label features are prominent and conform to FSIS regulations. Although such labels are not submitted to FSIS for approval, they are deemed to be approved and, therefore, may be applied to product in accordance with the Agency’s prior label approval system.
  • The final rule will expand generic approval to products only intended for export that deviate from domestic labeling requirements and permit generic approval of the labels of products that receive voluntary FSIS inspection. It will also expand generic approval to:
    • (1) “Organic” claims that appear in a product label’s ingredients statement;
    • (2) Labels of products that receive voluntary FSIS inspection (e.g., exotic species);
    • (3) “Geographic landmarks” displayed on a product label (e.g., a foreign country’s flag, monument, or map); and
    • (4) “Negative” claims made on product labels that identify the absence of certain ingredients or types of ingredients (e.g., statements such as “No MSG Added,” “Preservative Free,” “No Milk,” “No Pork,” or “Made Without Soy”). However, the final rule does not include negative animal raising claims (e.g., “no antibiotics administered”).
  • As of the effective date, FSIS will no longer evaluate labels submitted to FSIS that are eligible for generic approval. FSIS will, however, continue to provide industry with relevant resources, including updated generic labeling guidance, and timely answers to generic labeling questions. FSIS has updated the FSIS Guideline for Label Approval and intends to update and reissue FSIS Directive 7221.1.
  • The final rule will become effective on March 20, 2023. Interested parties may submit comments on the revised FSIS Guideline for Label Approval on or before February 17, 2023 here. Keller and Heckman will continue to monitor and report on the USDA generic label approval rules.
  • Last year we reported on a class-action lawsuit which alleged that a product described as “brown bread,” and which contained oat and rye flakes on the crust and a “no artificial preservatives or flavors” label claim, deceived consumers by creating the appearance of a healthier product consisting primarily of whole grains. In reality, the product consisted primarily of refined enriched grains, although it also contained some whole grains.
  • Last week, the Court rejected Plaintiff’s fraud claims because the labeling made no reference to the quantity of whole grains, nor did it even refer to “whole wheat” or “whole grain.”
  • The Court also dismissed breach of warranty claims because no notice had been given to Defendant of the breach; a negligent misrepresentation claim because, absent certain exceptions the court deemed inapplicable, such a claim cannot stand on economic loss alone; and an unjust enrichment claim because it was premised on the fraud claims. Additionally, the Court dismissed for lack of standing Plaintiff’s request for injunctive relief because by bringing action, Plaintiff demonstrated awareness of the alleged deficiency in the product, and therefore was unlikely to sustain future harm.
  • Plaintiff’s claims, with the exception of the negligent misrepresentation claim, were dismissed without prejudice so Plaintiff may amend the complaint and refile by January 26, 2023.
  • On February 26, an Illinois resident, Rabia Hamidani, filed a proposed class action complaint against Bimbo Bakehouse LLC alleging the bakery manufacturer of selling misleadingly labeled Cheesecake Factory-branded bread (subscription to Law360 required). Specifically, Hamidani alleged the bread and bread label deceived buyers into believing the bread was healthier and contained more whole grains than it actually did based on the bread’s brown hue, a crust with visible grain pieces, and the claim “no artificial preservatives or flavors” declared on the label’s principal display panel.
  • According to the complaint, bran gives whole grain products a distinctive brown coloring, whereas refined grains are white in color. Hamidani argued that the brown color of the Cheesecake Factory-branded bread came from dried molasses and caramel color, and not whole grains, given that enriched wheat flour was the most predominant ingredient and whole wheat flour was third. Further, it was asserted that the product’s name “Brown Bread” “takes advantage of consumer assumptions and beliefs about the darker color of whole grain products.”
  • Hamidani argued that consumers increasingly prefer whole grain products because they are nutritionally superior to non-whole grain products. She further stated that the product’s appearance and name misled consumers into believing the bread was more nutrient-dense than similar products, and caused consumers to pay a premium for the “Brown Bread.”
  • Hamidani argued the company violated the Illinois Consumer Fraud and Deceptive Business Practices Act through false and misleading statements and omissions regarding the “absolute and relative amount of whole grains compared to refined grains” within the product. She also claimed negligent misrepresentation, fraud, and unjust enrichment, among others. Keller and Heckman will continue to monitor any developments in this litigation.
  • On August 31, the Ninth Circuit decertified a class of consumers that claimed Coca-Cola falsely labeled its drinks as having no artificial flavors when they contained phosphoric acid (subscription to Law360 required). This decision reversed a class certification order from a California federal judge, and agreed with Coca-Cola that the consumers lacked standing to pursue injunctive relief because they have not shown that they are at risk of suffering future harm.
  • The consumers alleged they were misled by Coke’s labels that claimed they had “no artificial flavors” and “no preservatives added” “since 1886” because the labels did not disclose the addition of phosphoric acid, which can be used as both a preservative and artificial flavor. That being said, several of the named plaintiffs stated that they were not actually concerned with the use of phosphoric acid, but were worried that Coca-Cola was not truthful on its product labels. In fact, those consumers stated that they would be interested in purchasing Coke gain if the labels were accurate, regardless of whether the product contained phosphoric acid.
  • According to the Ninth Circuit, the desire for Coca-Cola to truthfully labels its products was not enough to demonstrate any future harm. In the decertification memorandum, the court found that “[n]one of the plaintiffs in this case allege a desire to purchase Coke as advertised, that is, free from what they believe to be artificial flavors or preservatives, nor do they allege in any other fashion a concrete, imminent injury. Instead, as plaintiffs explained in their brief, they have ‘each stated that if Coke were properly labeled, they would consider purchasing it.’ Under governing law, such an abstract interest in compliance with labeling requirements is insufficient standing alone.”