Skip to main content

California Takes On Candy Makers With Bill Opponents Call the ‘Skittles Ban’

State moves toward barring food additives over health concerns

Source: Wall Street Journal

California lawmakers want to taste a slightly less artificial candy rainbow. 

The state Assembly has passed a bill that would ban use of five chemical additives in food products, including a coloring agent found in Skittles—with its “taste the rainbow” slogan—and Red 3, which is used in packaged cookies, frostings and other snacks. 

Consumer advocates backing the bill say these additives pose health risks and should be removed. Candy makers say federal regulators, not states, should determine the safety of food additives.

The bill, dubbed the “Skittles ban” by its critics, has fueled a national debate over these additives and how the push might alter some beloved treats if it becomes law.  

Both sides are digging in for a fight in the California state Senate, where the bill goes next. Supporters bristle at the term “Skittles ban,” saying candy makers have plenty of other coloring options. They note that the five additives targeted by the California bill are already largely banned in the European Union.

“If I thought this would ban Skittles, I would vote against it,” said Assemblyman Jesse Gabriel, a Democrat who co-wrote the bill with fellow Democratic Assemblywoman Buffy Wicks. “I don’t believe this is going to pull a single product off the shelf.”  

Candy makers said they don’t want to face a state-by-state approach to regulation of their ingredients. 

“The California Assembly is well-intentioned, but this is not the right way to do it,” said Christopher Gindlesperger, senior vice president of public affairs for the National Confectioners Association, which represents candy makers, many of whom have concerns about the bill. 

The bill’s opponents said any required changes should go through the U.S. Food and Drug Administration, which has recently received consumer petitions to stop the use of Red 3 and titanium dioxide, a coloring additive found in Skittles. 

“We shouldn’t put the cart before the horse,” said state Assemblyman Vince Fong, a Republican, who voted against the bill. 

An FDA spokesperson said the agency has evaluated all five additives and is actively reviewing a petition filed in October by the Center for Science in the Public Interest and others to revoke its approval of Red 3 for use in food. 

Consumer advocates said the FDA hasn’t reviewed some of these additives since the 1970s, and hasn’t followed through on its comments in 1992 suggesting the agency would revoke the use of Red 3 in food. 

“This regulatory process at FDA is so broken that states are now stepping into the breach,” said Scott Faber, who leads government affairs at the Environmental Working Group, referring to the California bill. 

The FDA spokesperson said the agency has continued to monitor scientific developments around the safety of Red 3. “While the FDA recognizes that the regulatory history of [Red 3] is complex, we can confirm that the FDA has evaluated the safety of all the substances that are included in the California state bill.”

The FDA permanently approved the use of Red 3 in food decades ago. After asking to review new studies in the late 1970s, the agency in 1990 revoked a temporary approval of its use in cosmetics when it concluded that it “causes a carcinogenic response in rats.” 

In 1992, the FDA said in the federal register that it “believes it must take action to revoke the permanently listed uses of the color additive.” 

The International Association of Color Manufacturers said science has since evolved and that the effects on rats fed high doses of color additives may not be the same in humans, particularly in this instance. In addition to Red 3, the bill that passed the California Assembly on a 54-12 vote would ban the use of titanium dioxide, potassium bromate, brominated vegetable oil and propyl paraben in food products. 

Mars, the company that makes Skittles, said in 2016 it plans to remove artificial colors from all its human food, but in 2021 halted that plan, saying it found that many consumers weren’t concerned about them. Mars said it would continue its efforts to remove them in Europe. 

Skittles in the U.S. are made with titanium dioxide, which is used to enhance color and extend shelf life. 

“We always follow local regulatory rules, and all our treats and snacks are made to the very highest quality and adhere to strict safety standards,” a Mars representative said in an email. 

Because California is such a big market, candy makers would adopt any required ingredient changes across the board, consumer groups say. A food-industry executive said reformulating products would take time and resources, a challenge particularly for smaller companies.

Frederick Stearns, a partner at the law firm Keller and Heckman who specializes in FDA issues, said companies’ decisions will likely be influenced by how easy it is to find comparable substitutes for these additives.

“We generally don’t see companies marketing separate versions of products for California and then for the rest of the country,” he said. Companies are often hesitant to change their recipes for popular, well-known foods, he added.

 For example, General Mills brought back Trix cereal made with artificial colors after consumers complained about an all-natural version. 

Some companies have already phased out many of these ingredients. Panera Bread, for example, said it committed in 2014 to removing artificial preservatives, sweeteners, flavors and colors. Panera phased them out, including all five additives targeted under the California bill, by the end of 2016, according to a company spokesperson.