AWG Regulatory Roundup — May 6, 2025
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- The New HHS/FDA Regime Aims to Kill Food Dyes
- New Mexico Becomes the Third State to Ban PFAS
- Arizona Enacts Bill Banning Certain “Ultra-Processed Foods”
- OMB Explains EO 14192, At Least In Part
- Presidential Memo Orders the Immediate Repeal of “Unlawful” Regulations
- OMB Issues RFI on Deregulation
- Phthalates In the Litigation Hot Seat, and Greenwashing Continues to Trend
The New HHS/FDA Regime Aims to Kill Food Dyes
On April 22, 2025, the U.S. Department of Health and Human Services (HHS) and FDA announced measures to phase out the use of petroleum-based synthetic food dyes in the American food supply as part of the administration’s “Make America Healthy Again” initiative. Specifically, FDA intends to take the following actions:
- Establishing a national standard and timeline for the food industry to transition from petrochemical-based dyes to natural alternatives.
- Initiating the process to revoke authorization for two synthetic food colorings—Citrus Red No. 2 and Orange B—within the coming months.
- Working with industry to eliminate six remaining synthetic dyes—FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2—from the food supply by the end of next year.
- Authorizing four new natural color additives in the coming weeks, including calcium phosphate, Galdieria extract blue, gardenia blue, butterfly pea flower extract, and other natural alternatives to synthetic food dyes.
- Partnering with the National Institutes of Health (NIH) to conduct comprehensive research on how food additives impact children’s health and development.
- Requesting food companies to remove FD&C Red No. 3 sooner than the 2027-2028 deadline previously required.
New Mexico Becomes the Third State to Ban PFAS
Following the lead of Maine (2021) and Minnesota (2023), New Mexico became the third state to prohibit intentionally added PFAS in consumer products. House Bill 212 was signed into law on April 8, 2025, and, among other things, prohibits the sale, offer for sale, distribution, and distribution for sale of the following products if they contain intentionally added PFAS:
- Cookware, food packaging, dental floss, juvenile products, and firefighting foam beginning January 1, 2027;
- Carpets and rugs, cleaning products, cosmetics, fabric treatment, feminine hygiene products, textiles and textile furnishings, ski wax, and upholstered furniture beginning January 1, 2028.
Beginning January 1, 2032, the ban will apply to all products containing intentionally added PFAS unless an exemption applies.
Arizona Enacts Bill Banning Certain “Ultra-Processed Foods”
On April 14, 2025, Arizona’s Governor signed into law House Bill 2164, which prohibits “ultra-processed foods” containing certain additives and dyes from being served in public schools. The new law defines “ultra-processed foods” as any food or beverage containing potassium bromate, propylparaben, titanium dioxide, brominated vegetable oil (BVO), yellow dye 5, yellow dye 6, blue dye 1, blue dye 2, green dye 3, red dye 3, or red dye 40. FDA banned BVO in July 2024 and red dye 3 earlier this year. Arizona schools must comply with the legislation beginning in the 2026–2027 school year.
OMB Explains EO 14192, At Least In Part
In January 2025, President Trump issued EO 14192, “Unleashing Prosperity Through Deregulation,” which aims to “promote prudent financial management and alleviate unnecessary regulatory burdens.” Section 3 of this EO directs executive departments and agencies to identify at least 10 existing regulations to be repealed each time they propose a new regulation. On March 26, 2025, the Office of Management and Budget (OMB) released a memorandum explaining Section 3 and the new agency actions must follow this 10-for-1 rule, along with the types of existing regulations that count towards the 10 that must be repealed. It also requires agency heads to ensure that the total incremental cost of all new regulations finalized for FY 2025, including repealed regulations, is significantly less than zero.
Presidential Memo Orders the Immediate Repeal of “Unlawful” Regulations
On April 9, 2025, the President issued a memorandum entitled “Directing the Repeal of Unlawful Regulations,” which provides further guidance on implementing EO 14219 (Ensuring Lawful Governance and Implementing the President’s “Department of Government Efficiency” Deregulatory Initiative). The memo directs agencies to prioritize evaluating the lawfulness of existing regulations under several U.S. Supreme Court decisions issued over the last decade, including Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). In addition, it orders the repeal of regulations without notice-and-comment rulemaking if consistent with the “good cause” exception of the Administrative Procedure Act. The memo also asserts that, in cases where repeal is consistent with a U.S. Supreme Court ruling, notice and comment is unnecessary as the immediate repeal of “unlawful regulations” is required as a matter of law.
OMB Issues RFI on Deregulation
The Office of Management and Budget (OMB) issued a notice of request for information (RFI) soliciting ideas for deregulation, including rules to be rescinded, along with detailed reasons for their rescission. The April 11, 2025 notice states that “Americans are the most inventive, hardworking, and industrious people in the world,” and that “[f]or too long, American dynamism and creativity have been stunted by onerous and unnecessary regulations.” OMB invites written comments through May 12, 2025 regarding any and all regulations currently in effect.
Phthalates In the Litigation Hot Seat, and Greenwashing Continues to Trend
In recent litigation news, the topic of phthalates and microplastics has continued to trend. However, a recent decision in the Ninth Circuit Court of Appeals could signal an effective and efficient approach to defending against these types of cases. At issue before the Ninth Circuit was whether Plum Organic’s baby food violated Consumer Legal Remedies Act and Unfair Competition Law by not disclosing that the baby food may contain heavy metals and perchlorate, which allegedly presented an “unreasonable safety hazard.” The Ninth Circuit affirmed the trial court’s ruling on summary judgment. In doing so, the Ninth Circuit recognized that even if the baby food contained trace amounts of heavy metals and perchlorate, multiple publicly accessible sources publicized their presence in the products. Additionally, the plaintiffs failed to allege the level of the contaminants in the products or plausibly allege that the products were actually unsafe or caused harm.
Another trend to watch closely involves plaintiffs targeting “naturally sourced,” “natural origin,” and “x% natural ingredients” claims for cosmetics, including where companies have explained what they mean by these phrases directly on the product label. Plaintiffs accuse the companies of mischaracterizing “industrial chemicals” like glycerin, cetearyl alcohol, and numerous other ingredients as “natural” to “greenwash” the products so they appear safer and environmentally friendly.
