by Candace Yamanishi*
There is a shifting sentiment against the use of synthetic food dyes in the US food supply. As citizen-led advocacy groups have been raising their voices about the health concerns of artificial food dyes, several states have introduced or passed legislation banning or limiting the use of certain synthetic food dyes in food products. These efforts reflect the growing concerns over links between artificial dyes (such as Red No. 3, Yellow No. 5, and others) and potential effects on children’s learning and attention, as well as possible risk of carcinogenic effects. These state-wide initiatives have now captured the attention of the federal government and the larger food industry as a whole. Since the U.S. Food and Drug Administration (FDA) maintains nationwide regulatory authority over food additives, a crucial question emerges: can state bans and restrictions on FDA approved food dyes stand, or will they be preempted by federal law?
Initially, the federal government widely permitted the use of synthetic food dyes. Red No. 3, a synthetic food dye made from petroleum was first approved for use in food in 1907. It was permanently listed for use in food and ingested drugs in 1969. In the late 1980s, studies showed that in high dosages this dye could cause cancer in rats. In 1990 the FDA banned the additive in cosmetics after research revealed increased cancer rates among rats that ingested the dye. Despite this discovery, the FDA did not remove the approval for the use of Red No. 3 in food. The agency justified this decision asserting that studies did not show that the dye caused harm to human health in the amounts ingested and therefore the approval of its use in food should not be withdrawn. The dye continued to be used in thousands of food and drink items. Today, over ten states have made efforts to ban the dye, which is already banned or restricted in the European Union, Australia, Japan and other countries. The EU requires any food products containing three specific food dyes to have a warning label that reads “may have an adverse effect on activity and attention in children.” The FDA does not require the same warning.
Recently, on January 15, 2025, the FDA announced it will be revoking the authorization for the use of Red No. 3 as a matter of law. Several states, including California, West Virginia, Utah, Arkansas, Missouri, Texas, and New York, have either enacted or are considering laws to ban or regulate synthetic food dyes. Thus far, the FDA’s action does not prevent these state-level actions, and, according to Secretary Kennedy, the existence of these state laws has actually encouraged the food industry to engage with the FDA on a national level.
The food industry has yet to challenge state food dye bans on grounds of preemption, a legal doctrine that allows a higher level of government to limit or even eliminate the power of a lower level of government to regulate a specific issue. Under the Supremacy Clause of the U.S. Constitution, federal law generally preempts conflicting state laws. Preemption can be express, where Congress explicitly states that federal law overrides state law, or implied where state law conflicts with federal law, making compliance with both laws impossible.
The Federal Food, Drug, and Cosmetic Act (FDCA) grants the FDA the power to regulate the safety of and labeling of food products, including the approval of color additives. The FDCA contains express preemption clauses, which limit states from establishing certain labeling requirements that are “not identical” to federal requirements for certain products. State laws can also be preempted if they conflict with federal law.
Currently there is no express preemption clause in the FDCA that explicitly prohibits states from banning artificial food dyes. Thus, states have the liberty to enact their own laws banning or restricting artificial food dyes unless Congress expressly indicates that a specific dye is safe or if a state law conflicts with federal requirements regarding specific food dyes. As they stand today, state bans on food dyes are unlikely to be expressly preempted by federal law, but they are vulnerable to preemption challenges on grounds that they conflict with federal law. These challenges are most likely to come from food manufacturers and trade associations. For example, a company may argue that it is impossible to sell their food product nationwide because states have prohibited a specific food dye which the FDA found to be safe.
Preemption arguments are also ripe in the area of labeling laws. For example, Texas recently signed a bill which created a labeling requirement that foods containing any of the bill’s 44 listed ingredients bear a specific disclosure. The disclosure must say the following, “WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.” The list of 44 ingredients includes azodicarbonamide, bleached flour, propylparaben, interesterified soybean oil, any “certified food colors by the United States Food and Drug Administration,” and 39 listed others. However, if the federal government were to review one of the listed ingredients and determine it to be safe for human consumption, the state would most likely be preempted from enforcing the warning label requirement. This labeling requirement could also be entirely preempted if the federal government implements its own law or regulation requiring a related and overlapping food warning label.
On April 22, 2025, the FDA announced a six-pronged plan to phase out synthetic petroleum-based color dyes from the food supply. This plan includes revoking authorization for additional food colorings. Looking ahead at the shifting regulatory landscape, as the FDA issues new guidance or final rules affirming the continued approval of certain dyes in the face of state bans, the likelihood of a successful preemption argument would increase. And on the other side of the coin, if the FDA revisits or revokes approval for certain dyes, state bans may effectively lead the way in shaping national standards. States and industry leaders will be watching closely as the FDA works toward phasing out additional food colorings and asks companies to entirely remove certain food dyes.
Both state-level and federal-level regulation of artificial food dyes in the US present distinct benefits and detriments. On one hand, states can act more quickly than the federal government when faced with complex health concerns related to artificial food dyes. Further, states can create more targeted and tailored approaches to specific health-related issues and goals surrounding the regulation of artificial food dyes. State-level regulation could also incentivize food manufacturers to explore and adopt unique approaches to natural alternatives to synthetic dyes, potentially leading to a more organic shift towards cleaner ingredients nationwide. On the other hand, a state-level approach to regulating artificial food dyes could very well lead to problematic patchwork regulation which could result in reduced product availability and inconsistent enforcement.
In contrast, federal regulation would provide nationwide consistency and uniformity, making it easier for food manufacturers to comply and avoid potential market disruptions. A federal standard could also have a broader impact and provide increased consumer confidence in the safety of the food supply nationwide. However, because the federal regulatory process can be significantly slower and cumbersome, delayed action is likely. Moreover, federal regulation can be more susceptible to industry influence, potentially leading to less restrictive standards than some states may desire.
As advocacy groups and industry leaders push state and federal regulators to reevaluate the health impacts of synthetic dyes, the coming years may either bring greater clarity or conflict regarding who gets to determine whether artificial food dyes are safe for our food supply – states or the federal government.
*Candace Yamanishi is a 2022 graduate of UCLA Law. She is currently an associate attorney at Hunsberger Dunn LLP and is a former Research Affiliate with the Resnick Center.
On Food Law 