A recent report published by the Harvard Law School Food Law and Policy Clinic (FLPC) analyzes how federal preemption may impact the emerging patchwork of U.S. state bills on food chemical safety, categorizing the types of common state bills seen in 2025 legislation and discussing possible legal and constitutional challenges. The report was authored by Grace Huddleston, Andrea Alegre, Sydney Pine, and Emily Broad Leib. It was developed out of a memorandum commissioned by the Center for Science in the Public Interest (CSPI).

(For more information on this topic, listen to a December 2025 Food Safety Matters podcast episode with food legal expert Brian Sylvester, J.D., who discusses challenges and uncertainties that arise from the growing number of state-level food regulations, including legality and constitutionality).

Categories of State Food Additive Legislation

According to data from the Environmental Working Group (EWG), as of December 2025, 20 state bills or resolutions targeting food additives have been enacted, and many more have been introduced. These pieces of legislation fall into four key categories:

1. Bills that aim to prohibit the manufacturing, distribution, and sale of food products containing certain specified food additives and colors. Notably, Arkansas and West Virginia enacted such bills in 2025. California passed the first bill of this kind (the California Food Safety Act) in 2023.
2. Bills that aim to restrict foods containing additives of concern from being offered in schools. Notably, Arizona, California, and Texas enacted such bills in 2025.
3. Bills that would require companies to report to the state when they use “Generally Recognized as Safe” (GRAS) substances in product formulations without notifying the U.S. Food and Drug Administration (FDA), requiring such substances to be listed in a publicly available GRAS database. Notably, New York, New Jersey, and Pennsylvania have introduced such bills.
4. Bills that would require warning labels on foods containing specific food additives and dyes. Notably, Louisiana and Texas enacted such bills in 2025.

Per EWG, states with active or passed food additives legislation are: Arizona, Arkansas, Alaska, California, Delaware, Georgia, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, West Virginia, and Wisconsin.

Federal Preemption of State Food Additive Laws Unlikely but Not Impossible

According to the FLPC report, courts recognize three circumstances in which federal law may preempt state law:

1. Congress may expressly preempt state law by explicitly stating its intent to preempt in the text of the statute
2. Known as “field preemption,” Congress may “occupy the field” and impliedly preempt state law by creating a scheme of federal regulation so pervasive “as to make reasonable the inference that Congress left no room for the States to supplement it”
3. Known as “conflict preemption,” federal law may impliedly preempt state law if the two regimes actually conflict, either because it is impossible to comply with both state and federal law or because the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

FLPC suggests that states will likely not be expressly preempted from restricting food additives allowed by FDA, prohibiting the sale of foods with certain synthetic colors or other additives in schools, or requiring notice for GRAS substances used in their products. This is because the Federal Food, Drug, and Cosmetic Act (FFDC) does not expressly preempt state law provisions prohibiting select additives; restricting the use of synthetic colors, other additives, or ultra-processed foods (UPFs) in school meals; or requiring GRAS substance reporting. Field and conflict preemption also do not likely apply to these types of provisions.

Although states are also unlikely to be preempted from passing laws requiring warning labels for foods with listed additives, there are potential conflict preemption issues that may arise from this category of law depending on the type of food product and the relevant statutory authority. Specifically, express preemption is likely not an issue under FFDC but might pose a challenge under U.S. Department of Agriculture (USDA) regulations on the labeling of meat and poultry products. Additionally, warning label requirements may face some conflict preemption challenges for frustration of federal objectives, but overall, the report’s authors do not believe these statutes should implicate conflict preemption.

Real World Efforts to Preempt State Additive Bills

Although unmentioned in the FLPC report, there have been some moves to craft federal legislation designed to preempt state food laws by centralizing power at FDA; however, as of November 2025, such efforts have not advanced. Related to these efforts, an industry-backed lobbyist group, Americans for Ingredient Transparency (AFIT), formed in late 2025 with the specific purpose of supporting federal actions that preempt or otherwise block state food additive laws.

Potential Constitutional Challenges

The report also suggests that the four categories of state bills would not likely violate the constitutional Commerce Clause via the dormant Commerce Clause doctrine. Traditionally, a state law or regulation violated the dormant Commerce Clause only if it 1) clearly discriminated against interstate commerce in favor of intrastate commerce, 2) imposed a burden on interstate commerce incommensurate with the local benefits secured, or 3) had the practical effect of extraterritorial control of commerce occurring entirely outside the boundaries of the state in question.

West Virginia Additive Law Blocked on Basis of Unconstitutionality

Interestingly, FLPC’s report only considers the potential constitutional challenges posed by the dormant Commerce Clause, but in December 2025, the U.S. District Court Judge filed a motion for preliminary injunction against West Virginia House Bill 2354 on the basis of unconstitutionality, effectively blocking the enforcement of certain provisions of the bill. The ruling said HB 2354, which aims to prohibit foods containing several food additives and dyes from sale statewide, is “unconstitutionally vague.”