New unlikely-to-pass bill would require FDA to study, reassess food chemicals

The Food Chemical Reassessment Act of 2021 (H.R. 4694) was referred to the House Energy and Commerce Committee about two weeks ago (July 26, 2021).  If passed, the bill would require the U.S. Food and Drug Administration (FDA) to study and reassess chemicals used in food. According to a press release from one of the legislators introducing the bill, “thousands” of chemicals are added to food to make it “last longer, taste better, and look more enticing,” but most of these chemicals have entered the food supply through the Generally Recognized As Safe (GRAS) “loophole” and “have not been reevaluated for safety in decades.”

The bill would amend the Federal Food, Drug, and Cosmetic Act (FFDCA) to create an Office of Food Safety Reassessment (Office) within FDA’s Center for Food Safety and Applied Nutrition. Its purpose would be to reassess the safety of food additives, food contact substances, GRAS substances, and prior-sanctioned substances or classes thereof. Thousands of chemicals enter the U.S. food supply every year; the bill is structured so that beginning in 2022 and at least once every three years, the Office would reassess the safety of at least ten of these substances. The Office would determine that a substance is safe within the meaning of FFDCA Section 409 and establish conditions of use, if any, under which the substance can be used safely, or the Office would determine that the substance is unsafe within the meaning of Section 409.

Under the bill, the first ten substances to be reassessed* would be:

  • Perfluoroalkyl substances and polyfluoroalkyl substances (PFAS);

  • Ortho-phthalates;

  • Tert-butylhydroquinone (TBHQ);

  • Titanium dioxide (nanoparticle food coloring for “white” foods);

  • Potassium bromate;

  • Perchlorate;

  • Butylated hydroxyanisole (BHA);

  • Butylated hydroxytoluene (BHT);

  • Brominated vegetable oil (BVO); and

  • Propyl paraben.

*Both endocrine disrupting chemicals BPA and BPS (used in “BPA-Free” food containers) are missing from the first round of reassessments.

What’s Next (Hint: Employees of the FDA are not busy packing to move their offices)

This legislation could mean much-needed protection for U.S. consumers, but because the bill was referred to a busy House Energy and Commerce Committee for action, and with no Senate companion legislation introduced to date, attorneys at Bergeson & Campbell, P.C. suspect that the likelihood of this bill moving forward this year is low. CFL concurs.