In this podcast episode, EWG President and co-Founder Ken Cook looks into why so many chemicals of concern are found in food sold throughout the U.S.
Cook speaks with EWG’s Vice President of Government Affairs Melanie Benesh about problematic additives that other countries have banned from food people eat every day, including substances linked to cancer and behavioral problems in children.
They discuss how failures by the Food and Drug Administration have allowed companies to add troubling chemicals linked to serious health problems into countless foods, and how some states such as California are pursuing laws to better protect consumers.
Disclaimer: This transcript was compiled using software and may include typographical errors.
Ken: Hi, this is Ken Cook, and I'm having another episode. This one is triggered by the recent public discussion around food additives. Food additives are being brought to everyone's attention these days, with the nomination of RFK Jr. to head the Department of Health and Human Services. Under President Trump, RFK Jr. has been very outspoken about the need to crack down on food additives. We'll have to wait and see if he's able to do that, if he's confirmed. But meanwhile, we do know that food additives and their effects on human health are issues that EWG has been working on for many years and for good reason. The science indicates we should be cracking down on food additives.
We'd be in good company. Many other countries around the world have much more stringent laws and requirements. And as a consequence, fewer additives in their food. That's where we should be headed. Everyone wants to eat healthy, safe food. So why is it so hard to get traction to change the system today?
I'm sitting down with someone who can speak to just how out of whack the U S food system is and where we can go from here. My guest, Is my colleague at EWG Melanie Benesch who is the vice president of government affairs here at Environmental Working Group She's an expert in this area. She spends a lot of time on Capitol Hill at the FDA And before the public, making the case that we need to do something about food additives.
And if that isn't enough, Melanie also teaches food justice law and policy at Georgetown University Law School. Melanie, thanks for joining me. Thank you so much for having me. Yeah. Great to have you here. And so let's just dive right in. So. Food additives. How bad is the situation and how did it get that way?
And you were quoted recently in a story on CBS News. Uh, and in that story, you, you said that, um, this is a banana's system. Advocacy groups and experts have long denounced the FDA loophole in its regulation of these food additives. Which allows companies to quietly decide, secretly decide, I'd say, which chemicals they deem safe enough to add to their products without going through the agency's oversight.
And you're quoted as saying, this is a banana system. This is not the way that new food chemicals should be approved. And come into our food supply. Say a little bit about how this came about.
Melanie: Yeah, it is a totally banana system. And I think your average consumer would not expect, uh, that it's food and chemical companies that are deciding whether their chemicals are safe.
That's the not what we expect from the government agency that's tasked with making sure that the food that we eat every day and that we feed our families every day are safe. And it's also not the system that Congress envisioned when they created this system in 1958. So this is really a scenario where there was a loophole written into the law that was meant to be very narrow.
And over time, that loophole, which allows food and chemical companies to decide what is safe, has swallowed the law. So to give you just a little bit of regulatory history, Congress passed the food additives amendments in 1958. And it was actually in response in part to a mass poisoning event that happened.
A bunch of kids ate Halloween candy with really, really large amounts of orange food dyes, which had been around since 1907, which the FDA had, had not looked at, which were assumed to be safe and which it turned out were, were actually quite toxic. And so you had kids breaking out in hives, you had kids having diarrhea.
And so Congress formed a commission and realized they didn't know very much about the hundreds at the time, and now it's thousands of chemicals that were being added to food. And this was right after World War II, where there had been a real period of innovation and development of convenience foods.
You had more women that were working outside of the house. And so there was this rapid change in our food system. In 20 years prior to that, Congress had passed the Food, Drug, and Cosmetics Act, which created a pre market approval system for drugs in response to a very unregulated drug market, lots of people getting hurt by snake oil, salesmen, and highly unregulated drugs.
And that system had worked pretty well. So they were like, we have these chemicals, they're being used in food, and we're going to create a system. Where you, the FDA looks at them and has to approve them before they can be used in the food so that we know whether or not they're safe. So that we're not just taking enforcement because if we're only taking enforcement, that means people have already been hurt.
So this was the situation in 1958. Congress created this pre market approval process and the idea was that 99 percent of food chemicals would go through that rigorous scientific. approval process so that the FDA would know exactly what was in food, they would know that it was safe and consumers could feel confident about what they were eating.
But they thought there are things like flour, spices, common ingredients that everyone knows are safe, and it's not a good use of government resources to go through that rigorous pre market review process. And so they created an exemption for things that are generally recognized as safe. And what has happened over time is as those pre market reviews under this petition process that was created have taken longer and longer, this new mandate also didn't come with any additional resources for the FDA.
The rulemaking process is slow. The approval process was slow. And so companies got fed up, decided they could say that their chemical is generally recognized as safe and slided in through the loophole. And over time, this has by far become the preferred way to bring a new chemical such that, uh, we did an analysis two years ago that showed Since 2000, nearly 99 percent of new food chemicals have come in through this grass loophole rather than through the formal petition process.
I think there have been about 10 petitions that have been filed in the last 20 years. In more than 750 chemicals that have come in through this loophole. And we know those chemicals came in through this loophole because the FDA has created a voluntary notification process. So companies have the option whether or not to tell the FDA that they have determined that their chemical is safe, but they don't have to.
And so there are also chemicals that are not reflected in this analysis that we did because we don't know about them because those companies chose not to tell the FDA.
Ken: It's layer upon layer of, of loophole, it seems like to me, or, you know, a permissiveness that defaults in favor of the industry. And part of the context, I know that we've been working on it at EWG for quite some time, is the whole question of how you can upgrade FDA's game in this area.
But even though it's called the Food and Drug Administration, If drugs and medical devices are in the penthouse, food has always sort of been in the crawl space at FDA. Underfunded, inadequate resources, and I think in some ways, uh, industry has, uh, kind of likes it that way, it almost seems, because then you don't, if you don't have the money to have expeditious review and enough scientists to do the review and so forth, you can always make the case that, well, this, this grass process makes sense, uh, so that we can have, These substances in our food without being delayed by agency reviews, how does, I mean, that's been part of the problem, right?
Resources.
Melanie: Yes. Uh, so this problem has definitely been exacerbated by a lack of resources, the food program being under emphasized at the FDA has sometimes been referred to as the silent F at FDA. Unlike a lot of other programs at the FDA, like drugs and medical devices, which are largely funded by industry user fees, there's no user fee for any of these food reviews or food applications.
So the FDA food program is almost entirely dependent on on funds from Congress. And the Food Office at the FDA is responsible for both these food chemical issues, but also food pathogen issues, which you're at least until recently were more likely to hear about in the news, E. coli outbreaks, things like that, that are much more acute and more of an emergency situation.
So the limited resources that that office has. has also often been shifted more towards these acute risks from foodborne illnesses at the expense of longer term risks that might come from repeat exposures to food chemicals, uh, increasing your risk of cancer. Reproductive and developmental harms, immunotoxicity concerns, endocrine risk disruption, the kinds of chronic risks that are more likely to be a problem with food chemicals in which are harder to trace back to the food that you're eating every day.
Ken: Yeah, but we're getting, we're getting doses of them, especially as the food supply, unfortunately, and the food consumption patterns by Americans have been, you know, Moving in the direction of more and more processed foods, some of the problematic food additives that we're not alone, but EWG has certainly identified that we've been working on.
Can you say a little bit about these?
Melanie: Yeah, these are a handful of food additives of concern that are part of a dirty dozen list that we've put together. These are chemicals that are either banned or more heavily restricted in other places than they are here. Uh, may be linked to cancer or other reproductive harms in some cases are widely used in food and aren't restricted, uh, really in the U S to the same degree.
We have several examples. Propylparaben is, uh, one of the chemicals that was just banned by California last year. I know we'll talk a little bit more about that. BHT and BHA, I believe both came through this, uh, grass loophole some time ago. Uh, seven artificial dyes. California also just took action to restrict the use of these dyes in school foods because some kids are really sensitive to them and have hyperactive responses after eating foods that have these dyes.
Titanium dioxide has been banned by Europe, but not in the U. S., uh, is used as a color additive to make. Things, uh, brighter or shinier or more opaque, so it's used in candies like Skittles, but also in some kinds of ranch dressings or soups, um, to, to add opacity is used sometimes by the dairy industry. I think the colors are interesting in particular because they're almost always added to foods to simply make them more appealing and more marketable.
They don't add any real function to the food. And so it should be easy to get rid of them. And over time,
Ken: various public interest organizations, including EWG have petitioned the FDA to do something about some of these substances and the agency hasn't been very receptive to these petitions. What's been done on some of these additives and the very slow process at the FDA that is frustrating.
Melanie: So it has been a very slow process and I will add just a little bit of legal nuance before talking about this delay. So color additives are treated just a tiny bit differently than food additives under the law. Whereas there is this huge loophole for food additives, a grass exemption, there is not a grass status for food dyes.
So these food dyes came through that pre market system, but that highlights the other big issue with our system that I want to make sure we talk about, which is one problem is lots of chemicals going through this loophole. But the other problem, and this is what we're trying to get to with our petition, is there's nothing in the law, either for food additives or color additives, that says that the FDA has to go back and re review the safety of chemicals, even if they were approved.
As is the case for some of these color additives, decades and decades and decades ago, even if, as is also the case for most of these additives, new science has emerged showing health risks that maybe the agency didn't previously know about or Certainly, the science around endocrine disruption has advanced significantly since 1958, uh, when Congress was first thinking about this and when the FDA was first starting to think about food chemicals.
And so that's the second problem. And so we have petitioned the FDA. Related to certain chemicals of concern, like BHA, like red three titanium dioxide, the BHA petition is not actually ours, but that one has been pending for 30 years, so it's worth noting, and the FDA has not responded to it, but we have filed these petitions to try and get the FDA to To look back because they have not been doing that on their own initiative.
And you can see here, some of these petitions have been pending for a thousand days, 500 days, 300 days, even though the agency is supposed to respond within six months.
Ken: Yeah, it's really a, a compounding of problem on top of problem on top of problem to really sort out the system at the FDA to, to try and get them to, to do something.
And one example of An area that we've been very actively involved for ourselves for decades now, generally, uh, these forever chemicals and, uh, they come under the FDA jurisdiction because they're added to packaging. Our concern is that the chemicals can migrate from that packaging into the food. Tell us a little bit about what we've been doing there and why it has taken FDA decades to react.
Melanie: Yeah, we're not just concerned that PFAS is migrating from the food packaging into the food. We know that it does, um, because there are studies that, that show that. And the FDA has also known this since the 1960s. We have seen a lot of attention to PFAS forever chemicals in recent years. In some cases, that's because government agencies are playing a bit of catch up.
The issues with PFAS were not as widely known to the government to the general public until there was more widespread testing of drinking water that happened in the last decade or so. But the FDA, through this pre market approval process, got petitions from DuPont and other companies that were manufacturing PFAS, like 3M.
where they had to show some of their science to the agency before the chemicals could be approved to be used in pizza boxes and microwave popcorn wrappers and grease proof wrappers and other food contact substances and food packaging materials. And those studies showed that some of that chemical, the PFAS chemical was migrating into food.
And also that it was toxic. So that there were liver and kidney effects that were identified by the company submitting the information to the FDA at the time.
Ken: They told the FDA about the toxic effects too.
Melanie: Yeah, they had to.
Ken: Yeah.
Melanie: And they did. In some cases, they underestimated the toxic effects and in some cases they underestimated the amount that was migrating into food.
So the companies don't get a pass. They have not been entirely honest with the FDA. But the FDA did know that there were chemicals migrating, that they had toxic effects, and they approved the chemicals and then continued to approve different iterations and uses of PFAS for decades.
Ken: So the FDA, I've always thought, seemed to know quite a bit more than the EPA knew about the toxicity of these substances based on what was submitted by the industry.
Melanie: Certainly earlier than the EPA.
Ken: Yeah, yeah, certainly earlier. And then, of course, we, we know that DuPont and 3M misrepresented or, and or lied about the risks of these chemicals based on what they already knew internally. With exposures to drinking water and obviously exposures to wildlife and from their own laboratory studies.
So it was, this was another case where it seems to me like the government had some indication, certainly at FDA, they, they might have, reasonably acted, I think, on the concerns that were put at their feet by the industry when they applied. EPA, I think, was more out, seems to have been lied to more for, or for longer anyway.
Melanie: Yeah. But the FDA also could have told the EPA. Yeah. It seems like the government agencies were also not talking to each other about some of these toxicity issues.
Ken: Yeah. And so when When RFK Jr. says this is a kind of a mess inside the agency, we'll get to the, you know, the, the question about how to best go about solving it, but there's no question that when you combine the limitations of, of the law and the loopholes that are in it, uh, you combine the inaction by the agency or the failure to talk across agencies about risks like these forever chemicals and so forth.
It does look like kind of a mess, right? It does look like pretty serious government dysfunction when it comes to these chemicals that are in our food.
Melanie: Absolutely. That is not a secret. That has been pretty widely acknowledged. There were a couple of really hard hitting exposés, particularly by Politico.
In the last couple years, just showing the dysfunction within the FDA foods program, the infant formula crisis a year or two ago, I think also really exposed a lot of the weaknesses. In response to that, there was an independent commission that was put together to look into some of these problems. And they interviewed former FDA scientists, current FDA Employees, other stakeholders, and I think the ultimate conclusion was, yes, it's a mess.
And they recommended a reorganization, uh, which the agency has been working on for the past year and was just formalized on October 1st. And part of that is a renewed emphasis on food chemicals in a way that we are still waiting to see the outcome of, but certainly it is a bigger emphasis than we have seen in the past.
Ken: It's a little on the late side to put it mildly, but, uh, but then there are other efforts underway too. So, Rosa DeLauro, and I think, uh, on the Senate side, Ed Markey, even though we think the agency can do a lot with the authority it already has, they've introduced legislation to give more direction to the FDA, even clearer authority to do something about these, uh, chemical loopholes that are allowing so many of these substances to get into our food without proper scientific review.
So that's encouraging.
Melanie: Yeah, we are very lucky to have some great champions, uh, in Congress, including Rosa DeLauro, Jan Schakowsky, Ed Markey. Cory Booker, who have been working on these issues for a long time and have been trying to call more attention to these issues for a long time. And they've introduced legislation that would try to formalize a post market review process.
So forcing the agency to go back and look at the safety of certain chemicals. Um, they call out some particular chemicals, much like ones on, on our list, BHA, propylparaben, potassium bromate, um, requiring the FDA to look back at the safety of those chemicals and then would take, uh, steps to narrow that graph loophole to say, for example, if you have a brand new chemical, there can't be general recognition that that's safe because no one knows about it.
And so that doesn't qualify for grass or to say that you can't make this determination in secret. You have to at a minimum tell the FDA and provide a minimum amount of science backing up your claim. So there's, there's, Common sense, I think, reforms that our champions in Congress have proposed to try and make this a better system.
Ken: Yeah. And I think consumers who've been watching this, regular people who've been watching this, their jaw might be on the table or on the plate as it were, but the fact of the matter is people have been worrying about this and fighting over it for years, especially public interest groups. I have to give a shout out to.
Our friends at the Center for Science and the Public Interest who have been fighting over this for decades. Really one of the few public interest groups that paid close attention to it. I think it's fair to say we've jumped in somewhat more recently. But, um, you know, Michael Jacobson, the founder of CSPI, he was talking to me about these issues back in the 80s when I first got to know him.
And I know that CSPI has been hard at it ever since. And Very frustrating, and part of, uh, what we have done, again, in collaboration with CSPI and other groups, is we've decided not to wait for the federal government to take action, so We went to, uh, the state of California. Let's talk a little bit about what's happened there because we've actually seen some, some real progress because we decided we didn't want to just rely on the federal government.
We also didn't want to just tell consumers, this was your job to police this and avoid these chemicals in your grocery cart. Of course, we give that advice all the time, and we have lots of guidance for people who want to do that. But. In terms of government stepping up, the first government to step up was in the state of California.
Can you say a little bit about that?
Melanie: Yeah. And I will say, I, even though I know a lot about this issue and I'm so lucky and privileged to have all of the EWG resources at my fingertips, I I do not want to be a consumer that thinks about this when I go to the grocery store. It's very important to me that the government step up.
And we did that in California. So I want Jesse Gabriel, Assemblymember Jesse Gabriel. He really should be a household name. He is an assembly member who championed this issue in California, wrote the first in nation bill banning for toxic food additives from food. No state had ever tried that before. He co sponsored the legislation with EWG and Consumer Reports and really, really, really learned the issue.
It was very clear to me working with him how deeply he cares about the issue and he really advocated for that bill. I came and testified once and I, I didn't even really need to be there because the assembly member just knew everything.
Ken: Yeah,
Melanie: and so he really championed that bill and really persuaded his colleagues in the California legislature that this is a real issue and that the federal government had fallen behind and that the federal government couldn't be counted on to protect us from these chemicals because you have decades and decades and decades of failure.
to do so. Yeah, this issue is getting a lot of attention now in light of some of the claims that RFK has made. But I really think that California introducing and passing this legislation was what I think of. As the turning point on this issue, because it got a ton of media attention, it certainly caught the attention of the food companies who I think never really saw state action as a threat.
And because California is such a big player. you know, you, you aren't going to find propylparaben or BVO or potassium bromate in food sold in California anymore. But many of these companies, uh, are not just selling in California, they're selling nationally and they're going to reformulate their product lines.
And so this has an effect made food safer for families all over the country.
Ken: That's right. And, and one of the noteworthy things about what, uh, assembly member Gabriel managed to do was bring along Republican support. These have been very bipartisan, nonpartisan measures that he has, uh, introduced and gotten to the governor's desk and gotten signed.
The first one was called the Skittles bill. That was the nickname that was attached to it because the food industry came out and said, well, they're going to ban Skittles instead of, you know, correctly saying, well, there are other ways to make Skittles. And this is, we have an image here of the, the signing statement from Governor Newsom and he stapled a package of Skittles to it that came from a country that doesn't have these.
same additives in the Skittles.
Melanie: Yeah, that's right. Many of these chemicals, I actually all of the chemicals with the exception of a very, very narrow allowance for red three and maraschino cherries in Europe. But otherwise, all four of the chemicals covered by the California ban are also banned in Europe.
And guess what? You can still eat Skittles. And chips and cereal and other processed foods in Europe that don't contain these additives. So there are cost effective alternatives available. There are healthier alternatives available. It's really just a matter of, I think, industry inertia in this case. Yeah.
Ken: The same companies are making products for the European market that don't have these chemicals and they're making them for the U. S. market. And they do have these chemicals. And this is. When we did the work to, to back up and support Assemblymember Gabriel, part of what we did was look at the availability of cost effective alternatives, the fact that people were still eating Skittles apparently in Europe.
There might be other reasons for not eating Skittles, but in Europe they didn't have to worry about some of the additives that we have in the Skittles made for the U. S. market. Yeah, that's exactly right. Now, once that happened in California, and this is, I think, another reason to think that the sea change that really took place was when these Bills started to get attention in other states.
People saw what California was doing and legislators elsewhere decided that they would try and do what California did, because they were concerned about their consumers too. And oftentimes these were, again, At least bipartisan, if not led in some cases, I think, by Republicans in other states, right?
Melanie: Yeah.
The lead sponsor of a very similar bill in Pennsylvania is led by a Republican. These are very bipartisan issues. No one is voting for toxic chemicals in the food that they eat and that they feed to their kids and that they buy at the grocery store every day. Yeah.
Ken: And the food companies, they push back hard.
They're very worried about it. Uh, then we followed up with a second measure. Again, assembly member Gabriel was the champion of this and again he drew bipartisan support to look at harmful food dyes that are in school food and this followed on a report that was developed in California by the agency that looks at toxic chemicals here and concerns were raised about Some of these food dyes and neurological challenges that kids commonly face these days.
And so we went forward and made the case that we should do this in support of Assemblymember Gabriel. That bill also made it to the Governor's desk, also with Republican support. In the California legislature, and here we see a picture of two of our colleagues, former colleague, Susan Little, who was our lobbyist in California and Scott Faber, our colleague in D.
C., who went out and made the case. illustrated by Fruit Loops. Yeah.
Melanie: And Susan Little certainly deserves a lot of credit for both this food dyes bill in schools in California and the bill that we passed banning for toxic chemicals in food. She really worked both of those bills. This is something that just makes sense.
The California agency that looks at toxic chemicals found pretty compelling evidence that some kids are really sensitive to these dyes and it affects their ability to pay attention when they're in school. And that's not good for them. It's not good for the other kids in their class. It's not good for the teachers.
It's not good for parents who know that these kids have sensitivities but can't control everything that they're exposed to when they're in school. And so this just removes one barrier. To having a good experience at school for those kids.
Ken: Yeah. And one of the people who's been at the front lines, pushing these things, mostly focused on the marketplace and getting companies to try and do the right thing is our friend, Vani Hari, who's now on a, on a tear to try and get Kellogg's to do something about the dyes it puts in fruit loops.
Um, and she uses, always uses the example, I think as. As Scott and Susan did of countries where somehow they can have Fruit Loops without these toxic dyes, they use vegetable dyes or something that's much lower concern. This is another dimension of this is the marketplace pressure. We've used it before.
On a number of occasions when the FDA doesn't act, when consumers need to have some additional backup, uh, we've gone to companies and said, you know, change what you're doing. We've tried to push them to get these glyphosate, this herbicide out of, uh, oats and other foods. And the same with Vani's effort now here pushing up against Kellogg's to do something about these artificial dyes in cereal.
Melanie: Yeah, I think that's been a really powerful image, because when you connect these issues to foods that people see in the grocery store every week, foods that they're eating every day or feed to their kids, it really personalizes the issue. And I think people feel a connection to these companies, like I grew up with Froot Loops.
And so knowing that there may be chemicals in those products, I think feels like a betrayal to a lot of people. And so. Those market pushes can be really effective to get companies to move markets. Retailers have also been an important influence where you have store brands that are now saying, uh, you, you can't use certain chemicals in our store brands if you want to sell here or formulate for our store brands.
Ken: Yeah. And if you can make healthier Fruit Loops, safer Fruit Loops for Canada, why can't you make them for us? Exactly right. Right. So. I know the food industry was upset. They complained that this is not science based, that these legislators are acting out of emotion. They're responding to, they're responding to their constituents, imagine that.
But the food industry doesn't, doesn't much care for it. And obviously they've said that this could result in a patchwork of regulation at the state level. That would be harmful. They don't like the pushback in the marketplace from people like Vani and, and people like us. But all of this has sort of created pressure on the FDA to do something.
And, and we've seen now some, some progress there say a little bit about this process that unfolded at the FDA. Seems to have kind of awakened from there. Long slumber this issue and tried to do something.
Melanie: So I think some of the critical journalism brought a lot of attention to the FDA. I think the infant formula crisis brought a lot of attention to the failings of the food program at the FDA And the Reagan Udall Commission was formed in response to that.
And it was really the findings of that independent commission that spurred this reorganization. And as part of that reorganization, uh, there was created an office of food chemicals at the FDA. It's the Office of Food Chemical Safety Supplements and Innovation is the official, uh, office name. So that reorganization has been underway.
It was formalized on October 1st. And then I think one other significant development was they hired a deputy commissioner for food, which is a career position. And the person that they brought into that position is someone that we know well, Jim Jones, because he was the assistant administrator for the office of chemical safety at the EPA.
So the office that regulates pesticides and chemicals used for both industrial and consumer uses. And so for the first time, I think the FDA has brought in someone to a leadership position within the food program who has a background in chemical assessment. And Jim, when he was at EPA oversaw sort of a similar process was happening within the chemical safety program, where for the first time they were setting up a look back program where they were prioritizing chemicals, figuring out how to assess them for safety, setting up a program that would do much of the things that we were asking FDA to do.
And so that was also, I think, a critical development. And then out of all of that came a public meeting in September of this year, September 2024 on what a. Post market review might look like so some sort of look back program where we would look at all the food chemicals that are currently on the market and figure out if they are still safe or if they should be restricted.
So there was a big public meeting in September. I spoke at that along with, um, one of our former colleagues who is now at the Center for Science in the Public Interest, Thomas Galligan. Who is a toxicologist who thinks a lot about food chemical safety. And we shared our NGO perspective on what a good post market review system would look like.
One that's rigorous, incredible, and transparent and includes public input and is peer reviewed and results in chemicals getting regulated and out of food if they may be harmful.
Ken: So there is an opportunity here for RFK Jr. If he's confirmed and he becomes the next secretary of Health and Human Services, FDA, is one of the dozen or so agencies under HHS.
So he would have the ability to do something about the campaign promises he's made to crack down on these food additives. Um, it won't necessarily be automatic and it won't necessarily be fast. And we know that the food industry, they've already said, they're concerned about some of the steps that might be taken.
They've been pushing back because if you're self regulated and in effect, that's how food additives have operated with food companies over the past few decades. It's largely self regulated. That's something you want to hang on to. If you're a company, you want to regulate yourself instead of having the government empowered to do it and effective at doing it.
But as we look at next steps, we, you know, we, we want to hope that something is done by, uh, RFK Jr., but we're not leaving that to chance, right? So let's go through some of the things that we're, We're planning to do and we're not alone. We have colleagues at other organizations including Consumers Union, including CSPI, state groups that are doing this at the state level.
But let's talk about some of those, Melanie.
Melanie: So, states should not stop. There has been a real explosion of interest in state action on food chemicals. In response to the progress that has been made in California and states should really keep plowing ahead with that progress because even under the best possible circumstances, federal regulation can be slow.
It can take time and states are often just better positioned to get things done quickly and that can have national consequences. And we just don't know yet what's FDA. There are a lot of variables that could. influence whether the FDA is able to make progress, but certainly the state should not slow down because they have long been leading the way and protecting us from toxic chemicals in our food and other consumer products, frankly.
Ken: Yeah. And I mean, just think of it as let's have belt and suspenders, let's take that state action. And then if the federal government starts moving on this, all the better. We can be. Doubly assured that something will happen, but the state action also lights a fire under the federal government to do something.
Yeah. And we've already
Melanie: seen that the FDA actually banned brominated vegetable oil earlier this year after California did. Yeah. And that was after the FDA had sort of spent 50 years thinking about whether or not to take action on, on BVO and California, I think cleared the way for the FDA to take that action.
Ken: Yeah. Yeah. I think shamed the agency more than a little bit by taking action the agency should have taken long before. So there's another step that's that we're ready for it, right? I mean, the FDA is apparently gone forward with a recommendation to ban red dye number three. We don't know exactly where it is.
We think it might be at the White House now. So that is something that, um, if the White House doesn't do it by the end of the Biden administration, that would be something that could be done early in the Trump second term, right?
Melanie: Yeah. So this is really the lowest of the low hanging fruit. Yeah, red three was also banned by California, so it will likely be phased out of foods all over the country.
But it's also really a slam dunk legal case. Our colleagues at the Center for Science and Public Interest created a really comprehensive petition that they filed with the FDA in 2022 that we signed on to that. reiterates the FDA's own 1990 conclusion that RED3 causes cancer, at least in lab tests. And the law is very clear that if an additive is shown to cause cancer in people or in animals, it cannot be in food.
There's not a lot of nuance to the legal standard. It doesn't really talk about like how likely it is to cause cancer at what dose. It just says if tests have shown that this causes cancer, it cannot be in food. And so it should be pretty easy for the FDA to respond to that petition and say, Yes, this violates, uh, it's called the Delaney Clause and we can't allow it in food.
And the FDA doesn't even really have to make a determination whether or not it's safe. The petition does a great job going into detail about all of the ways in which RED3 is probably not safe and shouldn't be in food, but really all the FDA needs is that cancer study to ban it.
Ken: Low hanging fruit is putting it, I think, politely.
This is, this is, uh, something that should have been done a long time ago and it's, it's shameful that FDA. Didn't take action. Another thing we're going to be doing at EWG as we follow this, and this is just to make clear, obviously, we've been sharply critical, uh, over, over the years, whether there's a Republican or a Democrat in the White House or running these agencies regardless of the politics of it. So we're, we're continuing to document FDA delays, delays that have continued through, in some cases, the Biden administration, in many cases date back much earlier than that.
Melanie: Yeah, absolutely. We'll be watching closely and doing whatever we can to try and make progress. Uh, but certainly the place where we are today is the result of a, a multi administration failure.
Ken: Yeah, exactly. So we're also obviously paying attention to. Opportunities to support FDA reform in Congress. You mentioned Rosa DeLauro's bill counterpart legislation on the Senate side, Ed Markey has supported, and there's other champions in both the house and the Senate. I haven't seen a lot of Republican support yet for those.
Maybe that is something that if it's the case that, uh, things have changed at the federal level for Republicans. would be nice to see this evidence of this with these reform bills, right?
Melanie: Certainly. And we're at the end of this Congress, but there will be a new Congress in 2025. And I have no doubt that our champions will want to reintroduce their bill.
And we will talk to representatives on both sides to try and build co sponsors and build support for those initiatives.
Ken: Yep. As ever, we, we are strictly bipartisan. So we'll be knocking on doors with an R on them and doors with a D on them. And Everything in between. Be planning to um, update our Dirty Dozen and we'll be filing more petitions before the FDA to do something about these additives.
We're going to be updating our internal food chemical loophole analysis to get up to date on just how many chemicals have come in through grass and perhaps other loopholes, uh, since we last did our analysis, which I think took us through 2021, 2022 something. I believe
Melanie: so. Yeah. I think we had data available through 2021.
So just, just a few years that we need to look at to update that.
Ken: And then another thing that's really important, because the food industry is so concerned about this so called patchwork of state actions, which is to say, state taking responsible action where the federal government has not, lots of indications that the food companies may go to Congress and try and preempt the ability of states to take action.
On these food chemicals. Can you say a little bit about that? Because we're trying to guard against that too. That could, that could come to the forefront next year with a Republican house and Senate and a Republican administration.
Melanie: Absolutely. This is the biggest fight of the next year. If I were a food company, that would be my first move would be to try and quell some of the activity in the state by saying simply that states don't have that power that the federal government has it under control and there will find members of Congress that are receptive to those ideas.
Preemption is a fancy way of saying that the federal Power overpowers state powers. So if the federal government has taken action on something, then states cannot, or if the federal government has jurisdiction over something, states no longer have that. This is a big fight. I think anytime that we're working on a consumer issue or a chemical issue, it's always kind of play.
Number one from the industry is to try and get of federal power so that they don't have to deal with states that are actually making progress. In some ways, that's like the whole game is making sure that states have that power because we just don't know what's going to happen at the federal level. I think even under the best circumstances, it's hard to pass laws.
It is hard to write new regulations. This incoming administration has put a lot of emphasis on cutting regulations and deregulation. A Republican Congress has traditionally cut resources. And so if you are taking resources away from the rule writers, That makes it harder to get federal rules and restrictions and state regulation is really the backstop to that.
And so if we lose state power right now, we've lost everything.
Ken: Yeah, and you know, this is going to be A really clear line to hold RFK Jr. and the Trump administration accountable to. We may see very slow progress, maybe no progress, at the federal level within the agency to take action. We may see no progress enacting the kind of legislation Rosa DeLauro and Ed Markey have introduced.
So we, we might see that at a standstill. But if there's a measure maybe added to the Farm Bill that's moving through now, that would, in effect, eliminate the ability of states to do what California and other states are thinking about doing on food additives. If that were to happen, we would expect RFK jr.
And the president himself to speak out against that. If in fact they're going to crack down on food additives, because we know that the chances of having action happen at the federal level are much lower than they are having more action take place at the state level. I suppose they could even Could they go back in, uh, with legislation and invalidate the laws that California has already passed?
They could do that, couldn't they?
Melanie: You could write preemption in such a way that it overturns both any prospective laws, so prevents any future laws, but also blocks existing laws. Yes.
Ken: So lots to do, lots of markers down for measuring how this incoming administration will do when it comes to dealing with food additives.
Yes. Thank you. And we have advocates like Melanie and Scott Faber and the whole team at EWG who will be producing more consumer content so that if the government doesn't take action, you can take action yourself to protect yourself and your family from these additives. We have lots of practical guidance there.
And also we're going to continue with all of our advocacy again, without fear or favor with respect to party identification. We're looking for allies to come and help us solve this decades old problem. We're thrilled to be in the fight, proud to be in the fight. Melanie, thank you for taking your incredible leadership role in all of this at EWG.
And um, we're going to get these, this done one way or the other.
Melanie: Absolutely. We are excited to continue the fight.
Ken: Well, thanks for being on the show. Thanks for giving us this, um, master course. Do I, I guess, do I get an honorary degree of some kind now? And everyone who watches too, you'll get it too. We'll just, uh, Watch your inbox.
We'll be letting you know when you've gotten your honorary degree. Well, we'll see what we can do.
Ken: Melanie, thank you for joining us on the show today and for all the work you do at EWG. I also want to thank you out there for listening. If you'd like to learn more, be sure to check out the show notes. For additional links to take a deeper dive in today's topic, make sure to follow our show on Instagram at Ken Cook's podcast.
And if you're interested in learning more about EWG, head over to EWG. org or check out the EWG Instagram account at Environmental Working Group. Now, if you'd like this episode, send it to a friend who you think might like it too. Environmentalism is all about meeting people where they're at. And if you're listening to this, you probably know someone who might be interested in today's episode too.
So my ask is that you send it along to them or as many people as you see fit. Today's episode was produced by the amazing Beth Rowe and Mary Kelly. Our show's theme music is courtesy of Moby and thanks again for listening.
