Ultra-processed foods are a staple of diets throughout the nation. For many, these foods are more accessible, affordable and convenient due to their long shelf lives and ready-to-eat nature.
They’re also a very hot topic right now, receiving increasing attention from consumers, media, governments and courts. The regulatory, legal and reputational risks associated with ultra-processed foods have never been greater for food and beverage companies and they may have trouble keeping up with the constantly evolving regulatory landscape.
Here are five regulatory developments food and beverage companies should have on their radar.
Defining ultra-processed foods
There is no legal federal definition of an ultra-processed food (UPF). The term “ultra-processed food” is as much a social and industrial classification as it is a nutritional one, grouping together a vast array of products with diverse impacts on health and nutrition.
Ultra-processed foods are commonly associated with the NOVA classification system developed by Brazilian researchers. This system groups foods based on the extent and purpose of food processing applied to them. NOVA classifies food into four groups: unprocessed or minimally processed foods; processed culinary ingredients; processed foods; and ultra-processed foods.
Under the system, UPFs are considered industrially manufactured products made up of several ingredients, such as salt, oils, fats, sugars, along with ingredients of little nutritional value, such as flavors, emulsifiers, dyes and artificial sweeteners. They’re typically high in refined grains, unhealthy fats, sugars and sodium. Generally, these foods are packaged and formulated for long shelf lives.
The federal government is currently seeking input on establishing a uniform definition of UPFs. It is examining processing methods, ingredients, dyes, nutritional elements and more. This effort will likely be complicated. Foods may contain ingredients considered “healthy” side-by-side with ingredients considered to be “unhealthy.” For example, are whole-grain cereals ultra-processed foods and unhealthy? How about plant-based milks? Fortified whole-grain bread?
While there is no federal definition, some states have tried to define and regulate UPFs, albeit with limitations, usually pertaining to school lunches. Arizona and California have led this effort.
California and Arizona’s definition of UPFs
In April, Arizona enacted the Arizona Healthy School Act, prohibiting public schools from selling ultra-processed foods. Its definition of a UPF any food or beverage containing one or more of the following ingredients: (1) potassium bromate; (2) propylparaben; (3) titanium dioxide; (4) brominated vegetable oil; (5) yellow dye 5; (6) yellow dye 6; (7) blue dye 1; (8) blue dye 2; (9) green dye 3; (10) red dye 3; (11) red dye 40. This list is known as the “standard 11” additives.
California’s definition is much more elaborate. In October, California Gov. Gavin Newsom signed a law banning ultra-processed foods in school lunches. The definition of UPFs in the California law is lengthy, but it is summarized as any food or beverage containing high amounts of fat, sodium or sugar, and, in addition, some technical ingredient, such as emulsifiers, dyes, stabilizers, thickeners, flavor enhancers, aerators, gases, non-nutritious sweeteners, etc.
UPF regulations in other states
While California and Arizona have offered a definition of ultra-processed foods, they are not the only states with regulations or proposed regulations concerning the foods. Several other states, such as Texas, Louisiana, Utah, Virginia, Georgia and Florida, have banned certain additives in school lunches, and some, including Texas, Florida and Louisiana, now require warning labels on foods containing certain additives.
Still other states have varying regulations on UPFs under consideration. One state, West Virginia, has outlawed artificial dyes and additives statewide. This ban is currently facing a legal challenge.
Regulations in other countries
Several countries around the world are increasing regulations on ultra-processed foods. For example, the United Kingdom and Mexico are among countries having implemented mandatory labeling systems using color coding or warning symbols if a product has high levels of sugar, salt or and fat. Some countries are also adding taxes to these products and using the revenue for public health initiatives.
The United Kingdom and Mexico are also among the countries restricting marketing ultra-processed foods to children. For example, there are regulations prohibiting the use of cartoon characters.
What it means for food and beverage companies
Business could look quite different if federal efforts to define UPFs and designate them as harmful are successful.
Many believe the federal government will use the definition to limit what foods can be purchased by Supplemental Nutrition Assistance Program recipients and those participating in other federal food programs, including subsidized school lunches. It could also use the definition to require warning labels designating foods as ultra-processed and unsafe.
The government could even ban certain ingredients, such as it has done with Red Dye No. 3. This would send food and beverage businesses scrambling for alternatives, possibly leading to product shortages and reduced revenue.
A definition also will likely increase the number of lawsuits claiming UPFs lead to harmful health conditions, as it creates a new basis for consumer protection lawsuits and false advertising claims if marketing and advertising conflict with the official UPF classification.
What should companies do about UPF regulation?
The upsurge in regulatory efforts is a catalyst for food and beverage companies to proactively review ingredients, manufacturing, labeling, marketing and more. Develop a plan to not only respond to active regulatory efforts, but to evaluate the risk of past and future practices and proactively mitigate that risk. That plan should include:
- Monitoring actions in Washington, D.C. and around the country to define UPFs, as well as any regulatory endeavors. Be prepared to respond.
- Auditing ingredients. Can you proactively replace some that might be the target of lawsuits or regulation? Can you get that process moving in advance of such actions?
- Reviewing marking and advertising claims. Ensure the products are being marketed in honest and lawful ways.
- Consulting experts. The science on ultra-processed foods is not settled. Experts that counteract addiction theories will be useful.
Ultra-processed foods will be a hot topic for some time. It pays to be proactive.
Kelly Jones Howell leads Harris Beach Murtha’s medical and life sciences industry team.
