Texas law requiring warnings on M&Ms, Fanta signed by governor

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Texas Governor Greg Abbott signed into law a bill that will require warning labels on products such as M&Ms, Cinnamon Toast Crunch and Fanta, sparking protest from the packaged-food industry.

Abbott’s signature of Senate Bill 25 on Sunday represents a victory for Health and Human Services Secretary Robert F. Kennedy Jr.’s “Make America Healthy Again” movement, which is looking to remove ingredients such as synthetic dyes from the nation’s food supply.

Food companies now have until 2027 to eliminate more than 40 ingredients, including artificial dyes and bleached flour, from their products sold in Texas.

If they don’t, they’ll have to include a label on new packaging warning the product contains ingredients “not recommended for human consumption” by other countries. Many, but not all, of the additives are banned or require warnings in other countries.

The law creates a new requirement for packaged-food companies in a state with more than 31 million residents — the second-most populous in the US. Historically, state regulations have triggered national changes as companies look to streamline production.

The Consumer Brands Association, which represents food companies, criticized the law, arguing it will “drive consumer confusion and higher costs.”

“America’s food supply is safe, and ingredients used in food and beverage products are rigorously studied following an objective science and risk-based evaluation process,” said John Hewitt, senior vice president of state affairs at the group, in an emailed statement.

While companies have long maintained that all of their ingredients are safe, some have nonetheless started removing ingredients that government officials and activists have blamed for health problems such as hyperactivity, obesity and diabetes in children.

Kraft Heinz Co. and General Mills Inc. recently announced they’re taking synthetic dyes out of their US products by the end of 2027. Industry groups have said no formal agreement exists with the federal government on the matter, however.

Cheetos, Pop-Tarts

As currently formulated, products including Coca-Cola Co.’s Fanta, PepsiCo Inc.’s Cheetos Crunchy and Nacho Cheese Doritos and Mars Inc.’s Skittles and M&Ms would be subject to the warning labels. So would Kellanova’s Frosted Strawberry Pop-Tarts.

Companies can avoid the label requirements for the targeted ingredients if the FDA or USDA declare them safe after Sept. 1. Additionally, if the agencies restrict an ingredient’s use, require a warning label, or ban it outright after that same date, then that action would supersede the Texas regulation.

If the federal government mandates labeling for “ultra-processed or processed foods,” that would also supersede Texas’ required labels.

Barring these conditions or new qualifications for the ingredients’ use from the federal government, the warnings will be required on labels beginning in 2027.

Questions remain in the industry about how the legislation will be implemented. The law applies for any food labeling copyrighted or developed beginning on Jan. 1, 2027, and under one interpretation, that means it only applies when a company next updates its packaging.

Gary Huddleston, a grocery-industry consultant for the Texas Retailers Association, said companies will be able to wait until they reformulate a product or otherwise change their labels.

Ingredients listed in the Texas law include BHT, a food additive, titanium dioxide, used for food coloring, and DATEM, an emulsifier.

Litigation

Lawsuits from packaged-food producers are expected.

“I don’t expect that to be the end of the debate here,” said Smitha Stansbury, a partner at King & Spalding’s FDA and Life Sciences practice, predicting the law will be “subject to litigation.”

“There’s precedent for food companies to challenge this law under First Amendment grounds,” said Seth Mailhot, a partner at Husch Blackwell and the leader of the law firm’s FDA group.

The food industry has argued that the legislation is too broad. It has also criticized the idea of making policy based on foreign governments’ classification of ingredients, as opposed to US or Texas regulators.