Podcast Summary: Food Safety Matters – Ep. 207

Guest: Brian Sylvester, Partner, Morrison Foerster
Host: Food Safety Magazine (Adrienne Blum)
Release Date: December 9, 2025
Title: Preparing for 'MAHA'-Driven Policy Changes on Food Dyes, UPFs, GRAS

Episode Overview

This episode returns to the controversial and fast-changing world of U.S. food additive regulation—an area that has rapidly evolved since the passage of the California Food Safety Act in 2023. Attorney Brian Sylvester, a food regulation thought leader, breaks down the legal, regulatory, and practical implications of the MAHA (“Make America Healthy Again”) movement, as well as newly enacted and pending patchwork state policies around food dyes, ultra-processed foods (UPFs), and the revisiting of the GRAS process. The discussion targets the intersection of state and federal law, the strategic moves of industry, the latest in FDA and USDA actions, and how manufacturers can prepare for compliance in this turbulent new environment.

Key Discussion Points & Insights

1. The Shifting U.S. Food Additives Regulatory Landscape

• State Momentum Sparked by California (37:54)

  • The California Food Safety Act in 2023 set off a rush: “I predicted we would see a patchwork of state legislative activity ripple outward. And that's exactly what happened.” (Brian Sylvester, 37:37)
  • States like Texas and Louisiana followed with their own warning and labeling measures. West Virginia passed a phased ban on certain dyes and additives.
  • Even red states have championed additive bans, aligning with the Make America Healthy Again (MAHA) movement, which Sylvester notes "gave it the political engine" the initial actions lacked.
  • School meal bans are seen as “the on ramp… build[ing] a political comfort… to move from school meals to retail more broadly.” (Brian, 39:32)

• Industry Pushback:

  • Major food industry players formed the Americans for Ingredient Transparency coalition, pressing Congress for a uniform approach to avoid a “maze of state by state laws.”

2. MAHA’s Federal Influence—Redrawing Policy and Law

• MAHA Commission & Executive Orders (41:00)

  • President Trump established a “Make America Healthy Again” commission, with HHS Secretary RFK Jr. chairing.
  • The commission’s Make Our Children Healthy Again Strategy outlines 128 federal actions:
    • GRAS Reform: Closing the “GRAS loophole,” switching to mandatory notification, and ending self-affirmed GRAS determinations.
    • Chemical Reassessment: FDA will revisit legacy authorizations, with substances like BHA, BHT, synthetic colorants under review.
    • Labeling: Fast-tracking front-of-pack identifiers especially for sugar, sodium, and UPF content; promoting natural-source color claims.
    • Federal Procurement: USDA will prioritize whole foods in nutrition programs, introduce MAHA food boxes for SNAP, and pursue junk food restrictions.
    • Marketing: All-agency efforts to limit the marketing of unhealthy foods to children.

• Better FDA Act (43:48)

  • Sen. Roger Marshall’s new bill aims to modernize GRAS, requiring more FDA oversight.
  • It surprisingly doesn’t contain a federal preemption clause, meaning states would still have leeway to enact their own, possibly conflicting, laws.
  • “The result would be that companies must comply with both.” (Brian, 48:14)

3. Legal Complexities: State Patchwork, Preemption, and Litigation

• Primary Legal Challenges (46:20)

  • Preemption & Compelled Speech: State warning/labeling requirements (e.g. TX’s on-pack warning, Louisiana’s QR code) go beyond federal law, raising First Amendment and preemption issues. Are these factual warnings or policy advocacy?
  • Interstate Commerce: Varying state bans and requirements mean extra SKUs, packaging, and logistical complexity, raising dormant commerce clause concerns.
  • Federal Layering: Even if Congress passes reforms, lack of preemption means state bans/warnings could stand.

• Industry’s Response:

  • Building centralized additive registries and compliance teams.
  • Mapping and tracking ingredient status by state/federal standards.
  • Adopting proactive R&D and legal strategies in anticipation of lawsuits.

Quote (48:44):

"Compliance and legal risk management are happening side by side." (Brian Sylvester)

4. How Food Companies Are Navigating New Realities

• Operational Intensity (49:31)

  • “Compliance today is multi-dimensional; it’s about design, data, and documentation.”
  • Companies need:
    • SKU-level additive databases.
    • Modular, version-controlled packaging for state-specific disclosures.
    • Cross-functional teams across regulatory, legal, and supply chain.

• FDA Modernization Moves

  • FDA has revoked 52 obsolete Standards of Identity, welcoming innovation and reformulation.
  • Bills in Congress and new FDA rules will require constant vigilance—major brands are monitoring “day to day changes.”

5. The Fast-Tracked Transition from Synthetic to Natural Colors

• FDA’s Policy Reset (52:56)

  • Four new natural-source color additives have been approved in 2025; FDA is accelerating decisions.
  • While phase-out of synthetic dyes is technically voluntary, “the combined force of federal policy, state bans, and procurement rules are making this transition essentially inevitable.”
  • “Risk has flipped. So using synthetic color additives is now being viewed more and more as a commercial liability, even if it's still technically legal.” (Brian, 54:25)

• Advice for Brands:

  • Early adoption of natural colors is incentivized—stability data and public commitments help establish regulatory credibility.

6. Ultra-Processed Foods (UPFs): Statutory Definitions and Regulatory Implications

• California as Trendsetter (56:00)

  • The Real Food Healthy Kids Act has created the first legal definition of UPFs in the U.S., though it differs from the NOVA system.
  • Could spur a patchwork of state laws—and pressure FDA/USDA to develop a national rule.

• Federal vs State Complexity (59:40)

  • “If the federal government ultimately develops a final rule that defines ultra-processed food, then they should then preempt any conflicting state definition of upf.”
  • However, standardizing definitions will be contentious and slow.
  • Foods commonly regarded as healthy could get caught up in broad statutory definitions unless regulations are carefully crafted.

• Industry’s Attitude (63:13)

  • Most companies will seek to avoid having products labeled as UPFs, emphasizing the removal of synthetic additives and promoting “cleaner” product lines.

7. Compliance Advice and Final Takeaways

• Best Practices for Companies (65:11)

  • Build a "MAHA folder" to centralize ongoing developments on state and federal law.
  • Track congressional actions (Better FDA Act, Food Chemical Reassessment Act, etc.).
  • Prepare public talking points and fast response plans for new regulatory statements.
  • Know your most strict standards among states—and consider formulating to that when practical.

• Quote (68:43):

  “Maha has set the compass. FDA and Congress are redrawing the map, and states are testing the terrain. So there’s a lot of work out there…and it’s really important to stay proactive.” (Brian Sylvester)

Notable Quotes & Memorable Moments

• On MAHA’s Effect:
  “California wrote the first chapter here and MAHA gave it the political engine.” (Brian Sylvester, 37:37)

• On Legal Uncertainty:
  “Are these warnings purely factual and uncontroversial or are they policy messaging dressed as disclosure? That's the litigation pressure point everyone is watching.” (Brian, 46:20)

• Practical Compliance:
  “Compliance today is multi dimensional, for sure. It's about design, data and documentation.” (Brian, 49:31)

• Risk Has Flipped:
  “Using synthetic color additives is now being viewed more and more as a commercial liability, even if it's still technically legal.” (Brian, 54:25)

• Final Word:
  “Maha has set the compass. FDA and Congress are redrawing the map, and states are testing the terrain.” (Brian, 68:43)

Timestamps for Major Segments

• 37:37 – The immediate ripple effects of the California Food Safety Act; rise of MAHA-led state action
• 41:00 – How MAHA reshaped the federal response and FDA’s new direction
• 43:48 – The introduction and details of the Better FDA Act
• 46:20 – Legal vulnerabilities: preemption, the First Amendment, and interstate commerce
• 48:44 – Industry’s holistic response to rising legal and compliance risk
• 49:31 – What modern compliance looks like in the post-California landscape
• 52:56 – The shift towards natural food colorants and voluntary/forced adoption
• 56:00 – California’s new UPF statute and prospects for nationwide definitions
• 59:40 – The legal puzzle of federal vs. state UPF definitions
• 65:11 – Proactive compliance advice in a fast-changing arena
• 68:43 – Closing reflection on the regulatory ‘terrain’

Summary Table: Key Regulatory Forces Discussed

| Subject | State Action | Federal/MAHA Action | Legal/Practical Challenge | |-------------------------|----------------------------|-------------------------------|-------------------------------| | Synthetic colors/dyes | Bans, warnings, QR codes | Fast-tracked natural approvals | Patchwork, litigation, commerce| | GRAS process | State bans/disclosures | Mandatory GRAS notification | Preemption gaps | | Ultra-processed foods | New CA statutory def. | RFI on federal definition | Differing definitions, timing | | School meals/junk food | Additive bans K-12 | Whole foods, MAHA boxes SNAP | Nationwide vs. state rules |

Tone & Language

Brian Sylvester offers clear, pragmatic legal guidance with a sense of urgency but not alarm, encouraging listeners to be proactive and to “lead, not follow.” He portrays the regulatory landscape as dynamic and high-stakes, echoing the podcast’s professional but approachable tone.

For food safety professionals, compliance leaders, and legal counsel, this is a must-listen conversation on how the U.S. food regulatory map is being redrawn by MAHA, with industry, states, and federal agencies all vying for influence.