Legislative Update�2026

Martin J. Hahn, Partner

Hogan Lovells US LLP

TFPA Annual Meeting

College Station TX

May 21, 2026

Martin Hahn’s �2025� Year in Review

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*Drawn by AI

The MAHA Commission

• Shortly after RFK’s confirmation, President Trump established the MAHA Commission via an Executive Order Issued on Feb. 13, 2025
• Chaired by RFK in his role as HHS Secretary

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Must study contributing causes to the childhood chronic disease crisis, including

• the American diet,
• absorption of toxic material,
• medical treatments,
• lifestyle,
• environmental factors,
• government policies,
• food production techniques,
• electromagnetic radiation,
• and corporate influence or cronyism

The MAHA Commission: Timeline

• May 24, 2025: Commission must submit a “Make Our Children Healthy Again Assessment”
• Must, among other things, assess the threat that “certain food ingredients, certain chemicals, and certain other exposures pose to children with respect to chronic inflammation or other established mechanisms of disease.”

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• August 12, 2025: Commission must submit a “Make Our Children Healthy Again Strategy” based on Assessment
• Must address “ending Federal practices that exacerbate the health crisis or unsuccessfully attempt to address it, and by adding powerful new solutions that will end childhood chronic disease.”

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The MAHA Assessment Background

• Issued without any input from interested parties such as NGO’s, consumer groups, academia, or the food industry
• HHS did not hold public meetings or establish a docket for information to be submitted
• HHS Issued the MAHA Assessment on May 22, 2025

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The MAHA Assessment Report

• Report issued May 22, 2025
• The Assessment first reviews the rates of chronic disease in this country
• The Assessment then focuses on the drivers for the increase in childhood chronic disease

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Summary of MAHA Assessment of the Drivers of Childhood Chronic Disease

• The food
• Exposure to environmental chemicals
• Pervasive use of technology
• Highly medicated
• Corporate capture and revolving door

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MAHA Assessment Highlights for Food Industry

• The Assessment identifies “poor diet” marked by high consumption of so-called ultra-processed foods (“UPFs”) as one of the “potential drivers” of the rise in childhood chronic disease.
• Although the Assessment recognizes there is no universally accepted term for “ultra-processed food,” the Assessment defines it as:

“Packaged and ready-to-consume products that are formulated for shelf life and/or palatability but are typically high in added sugars, refined grains, unhealthy fats, and sodium and low in fiber and essential nutrients.”

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Assessment Statements on Diet

• The Assessment recognizes processed foods have allowed the American society and economy to “feed the world,” but then states over-reliance on processed foods is damaging the health of American children for three key reasons
• Nutrient Depletion
• Increased Calorie Intake
• Inclusion of food additives

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Nutrient Depletion

• “Grains processed by removing the bran and germ;”
• “High fructose corn syrup and other added sugars;” and
• The shift from “minimally processed animal-based sources of fat such as butter and lard to refined seed oils such as “soybean, corn, safflower, sunflower, cottonseed, and canola.”

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Increased Calorie Intake

• The “processing inherent in UPF production” could “interfere with brain reward pathways and satiety hormones, promote faster eating, and compromise gut fullness signals,” leading to weight gain.

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Inclusion of Food Additives

• The Assessment asserts that “certain food additives” are “linked” “to increased risks of mental disorders, attention deficit hyperactivity disorder (ADHD), cardiovascular disease, metabolic syndromes and even carcinogenic effects.”
• Food ingredients highlighted in the Assessment:
• Certain food colorings such as Red 40
• Titanium dioxide
• Propylparaben
• Butylated hydroxytoluene (BHT)
• Artificial sweeteners (aspartame, sucralose, and saccharin)
• The Assessment links the above food ingredients with various chronic diseases

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MAHA Strategy Report�Issued September 9, 2025�

More balanced approach in the strategy

Key changes

• Pesticides
• Seed oils
• Sodium reduction
• Saturated fat

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Key Focuses for Strategy Recommendations

Policy Developments

• Developing a definition for “Ultra processed foods”
• Dietary Guidelines for Americans
• Front of pack nutrition labeling
• Changes to GRAS process
• Post-market chemical assessment
• FD&C certified colors
• Infant formula
• SNAP

Deregulatory Initiatives

• Streamlined organic certification
• Reduced burdens to small farms
• Zoning restrictions
• HACCP guidance for very small meat processors
• Small dairy operations
• Pest control for farmers
• “Flexibility in manufacturing requirements”

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Kessler Citizen Petition Seeking FDA Revocation of GRAS Status of Refined Carbohydrates

• Filed August 2025
• Petition asks FDA to revoke GRAS status of:
• Refined sweeteners, including corn syrup, corn solids, glucose syrups, dextrose, invert sugar, xylose, maltose, and high fructose corn syrups; and maltodextrin (also referred to in the petition as “starch conversion products”)
• Refined flour and starches that are subjected to food extrusion technology, including wheat, corn, tapioca, oat and potato flour, and starches that are processed by extraction or similar technology
• Sucrose, refined flours, or starches that are used with emulsifiers (e.g. mono- and diglycerides of fatty acids, DATEM, sodium stearoyl lactylate, polysorbates); dough conditioners and strengtheners (e.g. azodicarbonamide, L-cysteine, calcium peroxide); humectants (e.g. propylene glycol); stabilizers and gums (e.g. carboxymethylcellulose, methylcellulose); or modified starches and fillers (e.g. regelatinized starch, modified food starch, dextrins)
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Kessler and RFK appear on 60 Minutes on Feb. 24, 2026

Front of Pack Labeling

• FDA issues proposed rule on front of package labeling on Rule on Front of Pack Nutrition Labeling on January 16, 2025
• Would require front of pack nutrition labeling on almost every food that bears an NFP today
• Would require placement on top 1/3 of the front panel (principal display panel)

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• Will this accomplish MAHA objective?
• Can FDA replace with something else that focuses on the type of processing or the ingredients used to formulate the food?
• What will be the cost to the industry?
• How much time will we have if a final rule is issued?

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Definition of “Ultra-Processed Foods”

• RFP issued and Requested Information
• How could it be defined?
• MAHA Report: “Packaged and ready-to-consume products that are formulated for shelf life and/or palatability but are typically high in added sugars, refined grains, unhealthy fats, and sodium and low in fiber and essential nutrients.”
• California Law for K-12 only
• Any food or beverage that contains one or more ingredients with specified technical effects as defined by FDA regulations (i.e., Surface active agents, stabilizers, propellants, colors, emulsifiers, flavorings, flavor enhancers , and non-nutritive sweeteners) AND either
1. “high amounts of saturated fat, sodium, or added sugar” or
2. a “nonnutritive sweetener” or D-sorbitol, Erythritol, hydrogenated starch hydrolysates, Isomalt, Lactitol, Luo Han fruit concentrate (i.e., monk fruit concentrate), Maltitol, Steviol glycosides, Thaumatin, or Xylitol.
• How will it be defined?

Hogan Lovells

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Dietary Guidelines

Hogan Lovells

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Super Bowl Sunday and “Real Food”

Hogan Lovells

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GRAS Under Attack “Closing the GRAS Loophole”

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Brief History---Good Old 1938

• In 1938 Congress passed the Federal Food Drug and Cosmetic Act (FFDCA) that transformed the federal regulation of foods, drugs, cosmetics
• Prohibited introduction or receipt in interstate commerce of foods that are adulterated or misbranded
• Misbranded: focuses primarily on the labeling and formulation of foods
• Adulteration
• Focused on safety
• Products could not contain poisonous or deleterious substances that render them injurious to health
• Products cannot be manufactured under insanitary conditions
• FDA had the burden of proof in demonstrating a food is adulterated or misbranded

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Hogan Lovells

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1938 Chevrolet Master Deluxe Coupe

1958

• In 1958 Congress passed the Food Additive Amendments of 1958
• Congress opted to define food additives very broadly

The term ‘‘food additive’’ means any substance the intended use of which results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food

• The definition includes intentionally added ingredients, processing aids, ingredients that migrate into food during process, substances that migrate into food from food packaging, and other substances
• A food is deemed adulterated for containing a food additive unless FDA has issued a food additive regulation authorizing the use of the food additive for the intended use

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1958

• Given the breadth of the food additive definition, Congress had to decide if it wanted FDA to review every ingredient and substance intentionally added directly or indirectly to food
• Congress exempted from the definition of food additive those substances

generally recognized, among experts qualified by scientific training and experience to evaluate its safety, as having been adequately shown through scientific procedures (or, in the case of a substance used in food prior to January 1, 1958, through either scientific procedures or experience based on common use in food) to be safe under the conditions of its intended use;

• GRAS substances lawfully can be marketed without seeking FDA premarket authorization
• In instances when there are insufficient data to support the GRAS status of a substance, FDA can deem the product an unapproved food additive

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Hogan Lovells

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Why is GRAS Under Attack?

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*Drawn by AI

• GRAS has provided industry and the government with much needed flexibility but:

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1. Distrust in letting food industry make decision about safety of new food ingredients
2. No list of self-GRAS determinations is publicly available (although the ingredients are declared on the ingredient statement)
1. Proposed rule at OMB and draft legislation amending FFDCA

State Ingredient Bans

• California
• Bans the use of Red 3, potassium bromate, bromated vegetable oil, and propylparaben as of January 1, 2027
• Restricts sale of certified colors in school meals as of December 31, 2027
• West Virginia
• Bans the use of butylated hydroxyanisole, propylparaben, Blue 1 & 2, Green 3, Red 3 & 40, Yellow 5 & 6 in all foods, effective January 2028
• Restricts use of certified colors in school meals, effective August 2025
• Court has Issued a TRO
• Texas
• Law would require warning on foods that contain one of 42 listed food ingredients
• Court has issued a TRO
• Louisiana
• Requires a QR code linking a statement when a food contains one of 42 listed food ingredients
• Effective Date January 1, 2028

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What Other Ingredients are Under Assault?

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Processed Food Litigation Update

• In December 2024 the law firm of Morgan & Morgan filed a lawsuit against multiple food companies alleging the processed foods they manufacture are responsible for causing type II diabetes and fatty liver disease in the 19-year old named plaintiff
• Motion to dismiss granted in August 2025, but Morgan & Morgan filed a motion requesting court to accept an amended complaint
• December 2025 City of San Francisco files complaint against same defendants (nuisance lawsuit theory)
• At least six additional product liability actions have since been filed in Florida, New York, Louisiana, Mississippi, Arkansas, and Georgia
• To date, the plaintiffs are focusing on the same 11 defendants

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Hogan Lovells

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HOPE?

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• California League of Food Producers v. Bonita
• Challenging SB 343
• CA definition of recycling violates First Amendment and other Constitutional Provisions
• Aragon et al. v. Rollins et al. 

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• SNAP waivers being challenged by beneficiaries of SNAP benefits
• Filed in DC District Court March 2026
• Increasing coordination and collaboration within and between industries and industry trade associations
• Consumers LOVE our products

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Martin Hahn

Hogan Lovells US LLP

555 13^th Street NW

Washington DC 20004

202/637-5926

Martin.Hahn@hoganlovells.com

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