By Naga Vivekanandan, JHBL Staff Member
At first glance, food ingredient lists can read similar to an excerpt from a chemistry textbook. Information about food additives and artificial ingredients is not necessarily hard to find online, but many American consumers are clueless about just what exactly is in the food they are eating. On its face, Quaker Strawberries & Cream Oatmeal seems innocent and is marketed as “heart healthy.”. However, in 2018, food blogger Vani Hari found preservatives such as citric acid and sodium sulfite and Red 40, an artificial color, hidden in its ingredients list. More concerningly, the strawberry oatmeal did not contain actual strawberries – instead, Quaker used dehydrated apples treated with artificial colors, flavors, and preservatives to mimic the taste of real strawberries.
In comparison, the United Kingdom’s version of Quaker Strawberries & Cream Oats is marketed to the public as “Oat so Simple” and contains no artificial ingredients or preservatives. It even goes so far as to use actual strawberries and raspberries in its ingredients list. Its packaging features images of real strawberries and raspberries, while the U.S. version shows an unclear red fruit topping on top of the oatmeal. Quaker Oats changed their U.S. oatmeal’s formulation by removing most of the artificial ingredients and using real strawberries in 2021, but it remains true that the United States has lax food laws in comparison to other countries.
In 1938, Congress passed the Federal Food, Drug and Cosmetics Act (“FDCA”), which initially labeled food as goods that should be regulated by the consumers themselves. Eventually, the Food Additive Amendment was added to the FDCA in 1958, allocating broad authority to the Food and Drug Administration (“FDA”) to regulate chemicals added to food products. More than 10,000 different food additives are used in American food products today, posing a challenge for the FDA as it becomes nearly impossible to regulate this amount of chemicals. When consumed, many of these chemicals have the potential to cause health problems, even when consumed in small amounts. This is especially true when individuals are exposed to or consume these chemicals in early childhood or early pregnancy. In 1982, a committee of experts urged the FDA to pay special attention to the effects of food additives on human behavior and how they might alter the endocrine system. However, the FDA chose not to implement or consider the majority of the committee’s advice. These careless actions have undoubtedly put Americans’ health at risk, particularly those of children and vulnerable populations.
Furthermore, the FDA’s approval system contains major flaws which make it impossible for the agency to competently regulate food additives. The FDA has designated a list of food additives to be “generally recognized as safe” (GRAS). Food items on the GRAS list are uniformly provided with a blanket liability shield, which protects food companies from litigation surrounding these particular ingredients. To encourage companies to keep updated information regarding the safety of their GRAS additives, the FDA implemented a voluntary program where food manufacturers could submit a chemical assessment for FDA review. However, the FDA’s decision is nonbinding, and the company is free to act as they please with the results. Since the process is voluntary, a company may choose to not submit an additive’s safety decision to the FDA. This would leave the FDA unaware of the additive’s presence in the food supply and any safety risks it may pose.
Another large flaw of this regulatory process is that a company may withdraw their request for an additive’s safety decision after the FDA flags it as a concern. The company may then still put that additive on the market without having to resubmit it to the FDA for review. The additive will then remain on the GRAS list, unknowingly posing safety risks to consumers. As a result of this flawed process, an estimated 3,000 out of 10,000 additives entering the market since 1970 have never been properly approved for consumption by the FDA. Moreover, the FDA reportedly has no information about 1,000 of these additives currently being used in American food products. Similar to off-label prescribing, which occurs when a physician prescribes a patient medication that has been approved to treat a different condition than that of the patient’s, an FDA-approved additive might be used for a different purpose than that of which the FDA is aware. Thus, the entire role of the FDA is limited, and leaves companies free to act in ways that most benefit them.
However, the FDA cannot be the only entity at fault for ineffective food additive regulations in the US. As American obesity rates rise, consumers look towards low-calorie alternatives to their favorite foods. These “miracle foods” are laden with toxic artificial sweeteners, posing their own set of health risks and serious side effects. Three common artificial sweeteners used in the U.S. are aspartame, sacchari, and sucralose. While consumption of artificial sweeteners in place of sugar may initially lead to weight loss and appetite control, studies show that the opposite effects are also likely to take place. Researchers at the University of California San Diego conducted a study where volunteers took sips of water sweetened with either sugar or sucralose and were shown with functional MRI scans whether or not their sweet cravings had been satisfied. The volunteers who had consumed sugar-sweetened water showed activated regions of the brain associated with food reward in their MRI scans, but the volunteers who had consumed sucralose-sweetened water did not. Despite not satisfying a sweet craving, artificial sweeteners still raise insulin levels in the same way as sugar. Nevertheless, it is unlikely artificial sweeteners will be removed from the market due to their widespread popularity and reputation for promoting weight loss.
When it comes to food additive regulations, the US might be better served following the example of other countries, such as European nations. Unlike the US, which prioritizes larger, industrial farming, European nations tend to prioritize local, small-scale farming. In 2002, the European Union (“EU”) passed a General Food Law, creating the European Food Safety Authority. This agency served to provide advice regarding food safety and nutrition to EU lawmakers as they regulated food quality. While the US tends to treat food additives as “innocent until proven guilty,” the EU requires each food additive to be scientifically proven as safe for human consumption before they are allowed for use.
A number of additives that are banned for consumption in the EU are allowed in American food products. Examples of these additives include recombinant bovine growth hormone (“rBST”), which is used in American dairy products, and butylated hydroxyanisole (“BHA”) and butylated hydroxytolueone (“BHT”), which are used in foods like vegetable oil, butter, and cereal. rBST is not added to actual food products, which explains why it is commonly excluded from food ingredient lists. This hormone is then injected into cows to increase their milk production, causing a long list of negative side effects. In humans, rBST can contribute to the growth of antibiotic-resistant bacteria, which essentially decreases the effectiveness of certain antibiotic medications. BHA and BHT are preservatives used to increase the shelf lives of certain food products. In 2011, the US Department of Health and Human Services conducted a study which found that BHA and BHT are “reasonably anticipated to be a human carcinogen.”
While it is unlikely that the FDA will remove every single harmful food additive from the market, the agency can take steps to change the approval process and strengthen food additive regulation overall. Importantly, the FDA should prioritize the health of consumers over potential economic benefits that food additives may provide.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources:
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