This update includes FDA and USDA updates, warning letters, lawsuits, and other articles of interest, including flexibility for “no artificial colors” claims, a safety review of BHA, risks tied to online sales of food products, a Food Traceability Rule exemption, and more.
FDA Updates
FDA Allows Greater Flexibility for “No Artificial Colors” Claims
February 5: The U.S. Food and Drug Administration (FDA) announced a new enforcement approach that gives food companies more flexibility to use “no artificial colors” claims on product labels. The agency said it will exercise enforcement discretion to allow these voluntary claims on foods that do not contain petroleum‑based certified colors, even if they include colors derived from natural sources. FDA said the change is intended to reduce consumer confusion and support industry efforts to move away from synthetic dyes. FDA also approved beetroot red as a new color additive and expanded the permitted uses of spirulina extract, giving manufacturers more non-certified color options. More information can be found here.
FDA Expands Approved Uses for Spirulina Extract Color Additive
February 6: The FDA issued a rule amending the color additive regulations for spirulina extract, a color additive in human foods exempt from certification. The rule expands the types of foods that may use spirulina extract as a color, while continuing to exclude infant formula and certain other regulated products. The FDA also updated safety specifications by lowering allowable limits for certain heavy metals, such as lead, arsenic and mercury, and adding a new limit for cadmium. FDA is taking this action in response to a petition from GNT USA, LLC. The rule is effective March 23, 2026, unless objections are received by March 9, 2026. More information can be found here.
FDA Approves Beetroot Red as a Color Additive Exempt From Certification
February 6: The FDA is amending its food color rules to allow beetroot red to be used as a color additive that does not require batch certification. FDA concluded that beetroot red can be safely used to color most human foods when used at levels consistent with good manufacturing practices. The approval does not apply to infant formula, foods regulated by the U.S. Department of Agriculture (USDA), or foods that have a federal standard of identity unless that standard allows the color. FDA is taking this action in response to a petition submitted by Phytolon, Ltd. The new rule is scheduled to take effect on March 23, 2026, unless objections are filed by March 9, 2026. More information can be found here.
FDA Launches Safety Review of BHA Preservative
February 10: The FDA is reviewing the safety of butylated hydroxyanisole (BHA), a preservative commonly used to prevent fats and oils from spoiling in foods such as cereals, frozen meals, baked goods, and some meat products. The agency will assess whether BHA remains safe for its approved uses based on current science and has issued a Request for Information on how BHA is used in food and as a food contact substance. The review is part of a broader effort by the FDA to re‑evaluate chemicals already on the market and may lead to further regulatory action depending on the findings. More information can be found here and here.
FDA Webpage Details Food Traceability Requirements Under FSMA
February 19: FDA created a webpage that explains the Food Safety Modernization Act (FSMA) Final Rule on Requirements for Additional Traceability Records for Certain Foods. The rule establishes new recordkeeping requirements for foods on the Food Traceability List and requires covered entities that manufacture, process, pack, or hold these foods to maintain specific records tied to key points in the supply chain. The FDA has proposed extending the compliance date to July 20, 2028, to give industry more time to implement necessary systems and processes. More information can be found on FDA’s webpage here.
FDA Issues Draft Guidance on Food Traceability Recordkeeping
February 20: The FDA released a draft guidance, “Questions and Answers About Requirements for Additional Traceability Records for Certain Foods,” to help industry better understand the Food Traceability Rule. The draft guidance explains additional recordkeeping duties that apply to companies that manufacture, process, pack, or hold foods on the Food Traceability. Public comments on the draft guidance are due by May 21, 2026. More information can be found here.
FDA Exempts Certain Cottage Cheese From Food Traceability Rule
February 20: The FDA granted an exemption for certain cottage cheese products from the Food Traceability Rule, which requires added recordkeeping for foods on the Food Traceability List. Cottage cheese regulated under the Grade “A” Pasteurized Milk Ordinance will not be subject to the additional traceability record requirements. The exemption took effect February 20, 2026. More information can be found here.
FDA Warning Letters
Acidified Foods: The FDA issued a warning letter to an Arkansas food processor for violations of federal acidified foods regulations related to the production of ready‑to‑eat pickled quail eggs. The FDA cited the company for the lack of required scheduled processes, failure to file process information with the agency, expired facility registration, and missing recall procedures.
Adulterated Supplements: The FDA issued warning letters to Eniva USA, Inc. and CC Pollen Company for violations of dietary supplement manufacturing requirements. FDA found that certain supplement products were adulterated due to failures to follow current good manufacturing practices, including the lack of established product specifications for identity, purity, strength, and composition.
A database of warning letters can be found here.
USDA Updates
FSIS Proposes Changes to Swine Inspection Line Speed Rules
February 19: The U.S. Department of Agriculture Food Safety and Inspection Service (FSIS) is proposing updates to the federal meat inspection rules that would let swine slaughter plants under the New Swine Inspection System (NSIS) set their own line speeds based on their ability to maintain process control. The proposal also clarifies that FSIS inspectors may require slower operations at any point if inspection cannot be performed effectively due to process control issues, animal presentation, or herd health. In addition, FSIS would eliminate the requirement for annual worker safety attestations. Comments are due April 20, 2026. More information can be found here.
FSIS Proposes Higher Poultry Line Speeds Under NPIS
February 19: FSIS is proposing changes to its poultry inspection rules that would allow faster processing line speeds under the New Poultry Inspection System (NPIS). The proposal would raise the maximum line speed for young chickens to 175 birds per minute and for turkeys from 55 to 60 birds per minute. The proposal also clarifies how line speed is measured based on inspectors’ ability to effectively conduct online carcass inspections, explains when FSIS may require slower speeds, and eliminates the requirement for annual worker safety attestations. Comments on the proposal are due April 20, 2026. More information can be found here.
FSIS Launches New Infographics to Clarify Product Jurisdiction
February 27: FSIS released three new infographics to help businesses determine whether meat, poultry, or egg products fall under FSIS jurisdiction. Available on the FSIS Apply for Grant of Inspection webpage, the infographics explain how FSIS determines jurisdiction for meat, poultry and egg products based on the product’s source, processing, and formulation. FSIS encourages businesses with questions to contact the agency through the askFSIS or Small Plant Help Desk web platforms, by phone at 1-800-233-3935 or 1-877-374-7435, or by contacting their District Office.
Other Articles of Interest
FAO Report Highlights Potential Risks in Online Food Sales
February 11: The Food and Agriculture Organization (FAO) issued a new report that highlights growing food safety and consumer protection challenges tied to online food sales. The report finds that many laws were written for in‑person food sales and may not clearly address who is responsible for safety, labeling, and recalls when food is sold through websites, apps, or online marketplaces. FAO reviewed how several countries regulate food e‑commerce and concluded that governments may need to update their legal frameworks to keep pace with the rapid growth of online food sales to better protect consumers. More information can be found here.
Petition Calls on FDA to Name Companies Tied to Foodborne Illness
February 11: Stop Foodborne Illness has petitioned the FDA to publicly name companies and brands linked to foodborne illness outbreaks, even when no recall is issued. The group says the FDA’s current practice of treating company names as confidential limits transparency and can leave consumers unaware of potential risks. The petition argues that naming brands would better protect public health and help consumers make informed choices during outbreaks. More information can be found here.
HHS Announces Leadership Changes to Advance MAHA Initiative
February 12: The U.S. Department of Health and Human Services (HHS) announced changes to its leadership team to accelerate implementation of the Administration’s health policy priorities. Secretary Robert F. Kennedy, Jr. appointed Chris Klomp as Chief Counselor to oversee department operations. Secretary Kennedy also named Kyle Diamantas and Grace Graham as Senior Counselors for the FDA and John Brooks as Senior Counselor the Centers for Medicare & Medicaid Services. HHS said the management updates are intended to strengthen coordination across agencies and advance the Administration’s “Make America Healthy Again” (MAHA) initiative. More information can be found here.
RFK Jr. Says FDA Will Review Petition on Ingredients in Ultra‑Processed Foods
February 16: In an interview on CBS’s “60 Minutes,” HHS Secretary Robert F. Kennedy Jr. said the FDA will act on a citizen petition, filed by former FDA Commissioner David Kessler, urging the agency to reexamine the safety status of certain ingredients commonly used in ultra‑processed foods. The petition calls on FDA to revisit whether refined carbohydrates such as corn syrup, high‑fructose corn syrup, and refined flours should continue to be classified as “generally recognized as safe,” arguing that the designation relies on outdated data and may be linked to chronic health conditions. Kennedy said the Trump administration is not currently committed to regulating ultra-processed foods. Kennedy instead plans to focus on informing consumers about potentially harmful ingredients. The FDA has issued an interim response but has not yet reached a final decision on the petition. More information can be found here.
Ex-FDA Chief: GRAS System, Ultra-Processed Foods Threaten Public Health
February 16: In the same CBS “60 Minutes” interview referenced in the preceding article, former FDA commissioner David Kessler warned that the long‑standing “Generally Recognized as Safe” (GRAS) framework may be contributing to serious public health risks by allowing thousands of food ingredients to enter the U.S. food supply without direct federal review. Kessler said widespread consumption of ultra‑processed foods, many of which rely on GRAS determinations, has altered Americans’ metabolism and fueled chronic diseases such as diabetes, heart disease, and fatty liver disease. The concerns align with HHS Secretary Robert F. Kennedy Jr.’s calls to reexamine the GRAS process. More information can be found here.
Tennessee County Investigates E. coli Cases Linked to Raw Milk
February 17: Health officials in Hamilton County, Tennessee, are investigating an unexpected increase in Shiga toxin‑producing E. coli infections linked to the consumption of raw, unpasteurized milk, according to a recent Food Safety News report. The health department investigation is ongoing and can be aided by consumer reports of illnesses that develop after consumption of raw milk. Officials emphasized that raw milk can carry dangerous bacteria and poses heightened risks for young children, older adults, pregnant individuals, and people with weakened immune systems. More than 95 percent of foodborne illness outbreaks linked to dairy products involve raw milk.
Sen. Cassidy Urges FDA to Speed Innovation
February 17: A new report from Sen. Bill Cassidy calls on the FDA to modernize its review processes to speed innovation and improve predictability. The report highlights inconsistent FDA review practices, which Cassidy says create unnecessary delays, particularly for treatments for rare diseases. The report urges greater use of flexible and lower‑cost clinical trial approaches. It also recommends clearer FDA guidance on emerging technologies such as artificial intelligence. Cassidy warns that regulatory uncertainty is pushing early‑stage research and clinical trials overseas, putting U.S. competitiveness at risk. More information can be found here.
Report Shows Growing State Scrutiny of PFAS and Plastics
February 18: A new report from Safer States finds that state lawmakers are increasingly focused on regulating PFAS and certain plastics in consumer products, water, and waste streams. According to the report, at least 15 state policies taking effect in 2026 will restrict PFAS or bisphenols in items such as food packaging, cosmetics, receipts, and children’s products, while more than 20 states are considering additional requirements for PFAS testing, monitoring, or disclosure in water and industrial discharges. The report also highlights growing attention to PFAS in biosolids and ongoing litigation against PFAS manufacturers, signaling continued state‑level pressure that could affect product formulations, supply chains, and compliance obligations nationwide. A copy of the report can be found here.
Food Companies Try to Keep it Simple
February 19: More food companies are using the word “simply” to attract consumers seeking products with fewer and more natural ingredients, according to a recent Bloomberg Law report. Major brands such as Kraft Heinz, Coca‑Cola, PepsiCo, and JM Smucker are expanding or reformulating “Simply” product lines to highlight the absence of artificial colors, flavors, or high‑fructose corn syrup, often at a higher price point. Executives say the strategy reflects growing consumer scrutiny of ingredient lists and rising pressure from policymakers focused on diet‑related health concerns.
FDA’s “Healthy” Label Deadline Is a Supply Chain Challenge
February 20: The FDA’s updated definition of the “healthy” claim is becoming a supply‑chain challenge, not just a labeling issue. The updated definition of “healthy” officially took effect in February 2025 but gave food manufacturers until 2028 to achieve full compliance. According to David Lennarz of Registrar Corp, meeting the new standard often requires reformulating products, qualifying new suppliers, updating nutrition panels, and validating ingredients through testing and documentation. As companies compete for a limited pool of compliant ingredients and suppliers, delays could lead to higher costs and sourcing disruptions. Manufacturers that start early and engage suppliers now will be better positioned as the 2028 compliance deadline approaches. More information can be found here.
California Moves to Tighten Oversight of Food Ingredients
February 24: California lawmakers introduced a bill that would significantly tighten state oversight of food ingredients, particularly those added to foods without prior FDA review. Assembly Bill 2034 would require companies using certain food additives to submit detailed safety information to the California Department of Public Health and could allow the state to ban ingredients it finds unsafe or poorly tested. Supporters say the measure closes gaps in the federal system that allows companies to self‑determine ingredient safety. Industry groups warn it could conflict with federal law, increase compliance costs, and lead to a patchwork of state rules. Given California’s market size, the proposal could have national implications, as manufacturers may reformulate products or adjust supply chains rather than produce state-specific versions. More information can be found here.
More States Move to Expand Raw Milk Sales, Raising Safety Concerns
February 25: According to a recent Food Safety News report, lawmakers in Iowa, Oklahoma, and Michigan are advancing bills that would loosen state restrictions on the sale of raw, unpasteurized milk, even though federal law continues to prohibit interstate sales. The proposals would expand where and how raw milk can be sold directly to consumers. Health officials and food safety advocates warn that raw milk can contain harmful bacteria that are normally eliminated through pasteurization and point to strong evidence linking raw milk to serious illnesses, especially among children and pregnant women. Supporters argue consumers should have more choice, while opponents caution that expanding sales without increased oversight could increase public health risks. More information about the Iowa bill (House File 2444) can be found here. More information about the Michigan bill (HB 5217-5219) can be found here. And more information about the Oklahoma bills (HB 3056 and SB2107) can be found here.
FDA Says Protecting Confidential Data Is Key to Its “Gold Standard”
February 26: Barclay Butler, Ph.D., Deputy Commissioner for Operations and Chief Operating Officer at the FDA, stated that protecting confidential information is essential to maintaining FDA’s “gold standard” of regulatory review. Federal laws require strict confidentiality and that improper disclosure could undermine public trust, innovation, and effective oversight. Butler highlighted the need to balance transparency about regulatory decisions with strong protections for sensitive information entrusted to the agency. More information can be found here.
South Dakota Governor Vetoes Lab‑Grown Meat Ban
February 19: South Dakota Governor Larry Rhoden vetoed a bill that would have banned the sale of cell‑cultured or lab‑grown meat in the state, saying the measure went too far by permanently banning a federally regulated food product. While the governor said he does not plan to eat these products himself, he stated that banning them based on how they are made rather than on safety could harm South Dakota farmers, invite costly legal challenges, and interfere with interstate commerce. The veto means cell‑cultured protein remains under federal oversight by the FDA and USDA, though revised legislation or a temporary moratorium to allow further study is still possible.
Lawsuits
Judge Blocks Texas Food Warning Label Law
February 12: A federal judge blocked Texas from enforcing a new law that would have required warning labels on foods and beverages containing one of 44 ingredients, ruling it likely violates the First Amendment. In granting a preliminary injunction, the U.S. District Court for the Western District of Texas sided with food and beverage industry groups and said the law (SB 25) improperly forces companies to display a government‑written message on labels, rather than allowing the state to promote public health through its own education efforts. The law, part of Texas’ broader nutrition agenda, targeted dozens of ingredients commonly used in processed foods and was set to take effect in January 2027. The injunction temporarily prevents the state from imposing penalties, with the court citing concerns about compelled speech and the cost and burden the labeling requirement would place on food and beverage companies. More information can be found here and in this Michael Best Client Alert.
Blue Bell Board Oversight Questioned in Listeria Case
February 27: A Delaware court is examining whether Blue Bell Creameries’ board of directors adequately monitored food safety risks before a fatal 2015 listeria outbreak. Testimony revealed that board meeting notes leading up to the outbreak rarely mentioned listeria or sanitation warnings from inspectors, raising questions about how much detail directors received or discussed. Company leaders said food safety issues were addressed at a high level and that directors could request more details if needed. The case highlights growing scrutiny of board responsibility for overseeing food safety risks. The case is Marchand v. Barnhill, Del. Ch., No. 2017-0586.
This Regulatory Update covers information from February 2026 Please contact Paul Benson, Taylor Fritsch, or Leah Ziembafor additional information on regulatory issues that may affect your business. For access to articles and resources from our Premium Member law firm, Michael Best & Friedrich, visit michaelbest.com.