*5.23.23 Update: The California Assembly passed the bill on May 15th - it now sits with the Senate for a vote. You can track AB418 updates here.
You may have read some recent headlines saying that products including Skittles® could be banned in California by 2025. Fortunately, Skittles are probably not going anywhere, what the bill is actually proposing is the ban of certain ingredients used in the recipes of not just Skittles, but thousands of other products as well.
If you have a product on the market, whether your product has any of the ingredients listed in the bill or not, it’s important to understand what these proposed regulatory changes could mean for your brand and what steps you can take to keep your product on the shelf or even give your brand a boost from these types of proposed legislations.
As a food scientist and consultant for some of the top food brands, I spent over four years converting dozens of products to clean label and non-GMO formulations while maintaining product consistency in the food and beverage industries. In this post I’ll share what I’ve learned working on reformulation projects and discuss how companies typically respond to this type of legislation, what can you do to stay proactive, what ingredients are being considered to be banned with this legislation, and a step by step process for companies to use when tackling a “clean label” conversion should the bill pass. For a quick summary feel free to jump to the bottom!
This is not new - brands, suppliers and legislators are all familiar with the clean label process and how to prepare and you should be too.
Banning specific ingredients that could be harmful is something that is not new to the food industry both in California and the US and the world for that matter. Many food scientists are retained or employed specifically to find solutions for this type of situation which, at a large scale, can be a multiyear project. I know that the ingredient companies expected these bills a long time ago, having seen similar legislation passed in the EU and other countries, and they likely have solutions in place already.
The likelihood also stands that the big food companies have already tested the replacement ingredients to quickly transition should this bill pass to avoid out-of-stock issues for their brands.
Although big and small companies often have to transition to similar alternative ingredients, not everyone is impacted the same way. A lot of times, clean label alternatives come at a cost until those ingredients become more common in the market or new ingredients emerge as a result of the legislation - which ultimately affects the bottom line. The bigger companies typically have such large scale manufacturing operations that it ends up costing them fractions of pennies versus a smaller company who might have to take a bigger hit to their margins. And while a lot of large companies have in-house R&D, I’ve seen both large and small companies without the foresight or resources to plan and execute a clean label transition and doing so can be a daunting process to begin.
In the past ten years, most clean label transitions have been consumer driven, whether from a credible source or not, a lot of the reasons companies change their ingredients stem from consumer demand. Artificial food dyes and colorants, like the red dye 3 and titanium dioxide targeted in AB418, have been a common clean label target for years, and there are plentiful replacement options out there.
Other ingredients such as carrageenan or hard-to-pronounce additives and artificial sweeteners have also been a main target for years for the “natural” food movement. Additionally, we’re seeing a big push towards organic (again!) and non-GMO in conjunction with the clean label transitions by companies. Some companies choose to transition their original formulas entirely or offer a clean label version of the original for an added cost.
The big question is: how should companies (large and small) react to this proposed bill while we wait to see if it passes?
Start prioritizing R&D - You shouldn’t wait to start finding a replacement solution for your product. If you run out of time or don’t feel confident that you can find suitable replacements without changing the color, texture or flavor of your product, reach out to an expert (such as The New Flavor) for help. The sooner you start the sooner you will learn how to adjust your business plan and convert your products to their new formulas. If the bill doesn’t pass you still have a choice to switch to the new ingredient(s) or you have a solution in place for the day it does pass.
Since you will likely have to change your packaging, now is a good time to examine all of your ingredients and their sub-components to plan for changes elsewhere to your ingredient list. Now is a good time to re-examine your ingredient costs, talk to alternate vendors you’ve been eyeing, tackle any desired changes to keep up with the latest trends and avoid converting to any negatively perceived ingredients.
Be advised to make any required changes first and then address any additional changes you want to make if you still have time. Conduct multiple rounds of testing with all of the changes to make sure you haven’t totally moved away from your starting product, and perform shelf life testing to ensure long term stability.
Determine your marketing strategy - Depending on what ingredient(s) you are replacing you may choose to advocate those “improvements” loudly across all channels OR you may choose to silently replace the ingredients so as to not ruffle your consumers feathers and cause an uproar.
Reformulation Checklist
Hire an outside consultant if you do not have in-house R&D
Put together a budget and timeline for the project
Test the alternative ingredients in application on a scale that mimics your regular production.
Begin shelf life testing and consumer testing your new formulas
Finalize all sourcing and procurement needs
Determine your company’s Marketing strategy (or lack thereof) - will you advertise the changes or silently roll out the change to avoid customer complaints?
Determine your transition strategy from the old to the new ingredient(s)
Roll out the change!
What are the ingredients and why are they being banned?
The proposed bill would take effect January 1 2025 so there is still time to make adjustments in case it passes, but keep in mind that these types of R&D projects and subsequent procurement and production changes can take time to implement depending on the scope of work required.
Brominated Vegetable Oil
Brominated Vegetable Oil (or “BVO”) is a mixture of triglycerides where bromine molecules have been added to make it an emulsifier that prevents the separation of citrus oils from the water-based drinks they are used in. While BVO’s used to be categorized as GRAS (General Recognized as Safe) by the FDA, it is banned in other countries and now tightly restricted in the US to use just for citrus flavors in beverages and is still undergoing research with regards to its safety at any level. And while it’s still allowed by the FDA, consumer demand for removal of BVOs actually resulted in Gatorade converting away from BVOs back in 2013.
Generally, the ingredients used in natural flavors aren't openly discussed by the industry to protect company IP. So when faced with the need to convert away from an ingredient in a flavor, you should be inquisitive and ask about alternatives with your suppliers. There continues to be a lot of research into the field of citrus flavors due to their massive popularity, so there might be quite a few choices when it comes to finding an alternative.
Potassium Bromate
Potassium Bromate is allowed in the US (although under strict requirements for use) while being banned widely elsewhere in the world. It is only allowed in the manufacturing of flour and baked goods and malted barley production process being used as a dough conditioner and powerful oxidizing agent.
In California if a manufacturer decides to use it, they must put a Prop 65 warning label for carcinogens on their product. The FDA also urges manufacturers to seek out alternatives where possible. Alternatives to bromated flour might include a slightly different manufacturing process and should be tested sooner than later.
Propylparaben
Propylparaben (part of the paraben family) is a type of preservative used widely in the personal care industry along with food and pharmaceuticals. The concern with this ingredient is due to its nature as an endocrine disruptor - meaning it mimics hormones produced by our bodies interfering with their natural mechanisms. The use levels of parabens allowed are restricted and low, and their use is widely debated across industries.
A lot of companies are already advertising the fact that their products are free from parabens due to consumer demand. Having converted brands from artificial to natural preservatives in the past, I personally recommend giving yourself ample time to seek out and thoroughly test alternative preservative options. This is one of the ingredients on the list that you want to be certain about your transition away from - not doing so could result in unsafe products and in the worst case, recalls.
Red dye 3 (FD&C Red No. 3)
Red Dye 3 aka Erythosine is an artificial red/pink colorant used in foods, candy, and medicines consumed by adults and children. Use and allowance of artificial food dyes (including Red dye 3) in our foods has been widely debated globally over their links to behavioral issues in children.
Besides this, Red Dye 3 has been banned for use in cosmetics. The International Association of Color Manufacturers (IACM), FDA, Joint FAO/WHO Expert Committee on Food Additives (JECFA) and the European Food Safety Authority (EFSA) have all agreed after reviewing studies that insufficient evidence exists showing a causal relationship between FD&C colors and behavioral effects.
Again, consumer demand has been urging brands to eliminate the use of artificial food colorings for quite some time now, and while natural color options are not always a perfect replacement for artificial colors and they can cost more, they are available.
Titanium Dioxide
Titanium Dioxide (TiO2) is a naturally sourced fine white powder used in everything from chewing gum to toothpaste and sunscreen. Citing the one candy most articles are using as click-bait, Skittles are typically coated in titanium dioxide before adding their signature color on top, which gives the candy their bright color (like a primer for your walls).
The biggest concern with Titanium Dioxide is based on the inhalation of it (not consumption or use on skin) which has been shown to be carcinogenic. So the individuals most exposed to the risks associated with titanium dioxide would be the employees actually making the colorant not the end consumers. There are substitutes for this ingredient, however having personally tested these there really is nothing quite like the bright white that titanium dioxide provides. Brands will need to plan their marketing approach for the removal of TiO2, as most likely the finished product’s appearance (but not performance) will change which can affect consumer acceptability.
Conclusion
To quickly summarize, the only brands who will be banned by this type of legislation are the ones who either wait too long to reformulate or decide not to entirely. For many large brands keeping up with the current consumer demands and regulatory changes is business as usual. Alternatively, brands have and will continue to lose out in the future if they are not following either closely and adapting. Every company should be prioritizing R&D whether they have it in house or not. Developing a budget and timeline to ensure you’ll be ready to keep your position on the shelf should the bill pass is how you will stay on track once you identify the conversions needed. Make sure you’ve thought about how, or if, you plan to market these changes and last, but not least, have a thorough transition plan in place so it goes smoothly - usually something goes wrong or takes longer than expected.
As a final thought, expect similar ingredient bans (whether by popular demand or through legislation) in the future as this has been happening since food was industrialized. Product reformulation can get very complicated, so if you want help or guidance through a transition process, feel free to reach out to an experienced product developer, such as The New Flavor, for help. Check out our services page for more info!
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