US Food and Drug Administration moves to ban red food dye | Hacker News Reader

US Food and Drug Administration moves to ban red food dye

theguardian.com

53 pointsrntn32 comments

Banned since ‘94 in the EU, also banned in Japan, China, and Australia

Wonder why it took so long. Is it the general sense of having least government involvement as possible, or lobbying?

I don't think there is anything to the timing of this but I am grateful for the greater focus on the lack of food safety enforcement under the FDA. Congress needs to first split the food from the drugs into separate agencies. Then give the FDA greater authority to demand compliance, transparency, and greater enforcement authority.

I started using the app Yuka [1] and it really opened my eyes on a lot of products I used to consume that were bad.

[1] https://yuka.io/en/

Please, ban all these synthetic food dyes.

Ban unhealthy food dyes, those to which our bodies have a net negative reaction over time, regardless of their origin. There are plenty of perfectly fine synthetic food dyes and ingredients that are inert or no worse than natural ones, even those derived from petroleum.

To digress slightly, while I can agree that food dye serves primarily aesthetic purposes and has little value beyond that, many of these food additives increase shelf life and stability, thus preventing food waste and contributing to the abundance that many parts of the world enjoy, and hopefully, in the future, many more places will be able to enjoy as well.

In the UK, labeling regulations allowed consumers to choose products with vegetable dyes while only banning the worst. Consumer pressure then led to many manufacturers switching to vegetable dyes to maintain sales.

American M&Ms use synthetic dyes:

> Coloring (includes Red 40 Lake, Yellow 6, Yellow 5, Blue 2 Lake, Red 40, Blue 1 Lake, Blue 1, Blue 2, Yellow 5 Lake, Yellow 6 Lake)

UK (and probably EU) M&Ms:

> Colours (E100, Carmine, E133, E160a, E160e, E170)

Or curcumin, brilliant blue (blue 1 lake), beta-carotene (carrots), apocarotene (spinach), calcium carbonate (chalk).

The British equivalent, Smarties, goes further and uses spirulina for the blue one.

Can we ban FD&C Red No. 40 too?

Anecdotally #40 seems way more common. I see that one everywhere.

Good start, but what would happen in the next 4 years with goverment organizations being closed? Or maybe they are finally taking some action...

M&M just added back Red Ones, wonder if they used #3

Don't worry, thanks to Chevron this just needs to get put in front of the right judge and we can get it tossed out in no time at all.

That’s not how the legal decision works. Overturning Chevron just means that courts are no longer required to automatically defer to the executive branches interpretation of law where there is statutory ambiguity or silence.

Courts must still defer to agencies when congress has conferred the power to make a rule or determination on an agency.

Only as long as that rule and determination is in accordance with supreme court politics. Otherwise they will find a way to twist the meanings again, so that they can ensure the outcome they want.

Chevron was always ridiculous. There’s no constitutional basis for executive agencies filling in accidentally ambiguous laws with their own sometimes expansive interpretations. Interpretation of the law has always been the domain of courts in common law systems.

Which statute bans red 3?

In fact, 21 CFR 74.303(c) says the following:

> FD&C Red No. 3 may be safely used for coloring foods generally (including dietary supplements) in amounts consistent with good manufacturing practice

Seems pretty ambiguous to me!

> Overturning Chevron just means that courts are no longer required to automatically defer to the executive branches interpretation of law where there is statutory ambiguity or silence.

That has _always_ been the case.

> Courts must still defer to agencies when congress has conferred the power to make a rule or determination on an agency.

No. Repealing Chevron means that the courts can now be used to determine the _facts_.

Yep, to be clear the thing that Chevron's overturn changed is that if a regulatory agency enforces something, you could take them to court (people seem to think this is the new thing), but they only had to assess whether the agency's interpretation of the statutes was reasonable.

Now, the court is allowed to just generate its own interpretation and use that instead.

This is only in cases where there is ambiguous language or the law doesn’t specify something. Plain readings of laws aren’t suddenly up for debate.

And I literally already posted the “ambiguous” language of red 3 legislation.

A freshman level course in semantics would tell you how meaningless the phrase “only in cases where there is ambiguous language” is.

I’m not sure what you’re after here. The phrase “good manufacturing practice” is somewhat ambiguous, unless it’s defined elsewhere in the law.

> FD&C Red No. 3 may be safely used for coloring foods generally (including dietary supplements) in amounts consistent with good manufacturing practice

What happens when new science comes in that determines it cannot be used safely? What does "safely" mean? "Safely" to whom? Under what conditions? With what degree of scientific consensus? Scientific consensus amongst whom?

"Good Manufacturing Process" is defined, but not in statute. It's defined by the FDA's own regulations, so FDA can update GMP guidelines based on that new science, sure, but all of it is now subordinate to judicial interpretation anyway.

My claim is that if people want this to be immune to Loper Bright overturn in some random court somewhere, we now need Congress to pass a law with something like "Red 3 cannot be used in a food product in higher concentrations than 3 ug/g" or whatever. We need Congress to pass identical laws for effectively everything FDA wants to regulate without risk of a random judge overturning it.

If new science comes in saying it actually needs to be 0.1 ug/g, welp, time to start lobbying Congress on this extremely, extremely niche and detailed change, which surely wouldn't lag behind the latest science by a couple decades.

You're claiming the statute is clear, so please describe specifically what the statute means.

The law says: "The FDA is responsible for food safety".

The FDA finds that the red dye #3 may be unsafe and bans it. Prior to Chevron's repeal, you could have only argued that the FDA's ban was not a proportionate response, or you could have argued that the FDA had not properly consulted with the industry. But that was about it.

Now you can just go to the court in Oil City, TX and say: "Nah, we don't believe that the red dye #3 is harmful. We think we ought to add it to every school meal! SAVE THE CHILDREN!". The jury agrees with you, and that's it.

> That has _always_ been the case

Not before chevron. Judicial deference on ambiguous language was invented in the chevron decision.

No. That has always been the case. E.g. SCOTUS overturning the EPA authority over wetlands not connected to the water bodies.

'Bout time

I'll take the win, but this seems very narrow in scope.

I have a bigger issue with chick-shaped marshmallow figurines with incredibly long shelf life and kid-targeted marketing than I do with the color red.

All this cheap, low value, post-war "food" needs to go. America needs more real food in general and the fact that the general population doesn't understand this problem is a much more important issue to tackle.

> the fact that the general population doesn't understand this problem

Rather, the general population either lives in one of the way too many food deserts in the US [1], can't afford good food even if there was a store because they're struggling to make rent, or doesn't have the time and/or energy left at the end of the day to cook a decent fresh meal.

FFS 47 million people in the US are food insecure, >50M used some sort of food assistance program in 2023 [2], and during Covid 30 fucking million children were at risk of hunger as the schools closed down [3].

The general population certainly understands they're eating shit or they're eating not enough, but has no power to change their circumstances.

And from an European POV, y'all's groceries are expensive as fuck and blasted to hell and beyond with all sorts of pesticides and whatnot.

[1] https://www.aecf.org/blog/communities-with-limited-food-acce...

[2] https://www.feedingamerica.org/hunger-in-america

[3] https://www.tfah.org/article/covid-19-school-closures-put-30...

If I rephrase it as "the general population doesn't prioritize this problem over other issues" maybe we can agree. If you look at the top N topics in every election cycle, they should pretty much all be lower priority than this one fundamental issue with America. Peeps and Cheetos are not adequate solutions for food deserts. We need a comprehensive plan to snap out of this situation.

While we are at it, labeling needs to change as well.

They play games with the calorie and serving sizes.

Having everything normalised per 100, as well as serving size, is such a no brainer and easy to achieve. That's how it is in the EU. I also like how some countries (IIRC among them Sri Lanka and Mexico, so if they can, anyone could), have clear colour codes to help you understand the product is too sweet/salty/caloric.

> chick-shaped marshmallow figurines

An American brought those to a party here in Denmark last year. I think it was the least-food-like thing I've ever eaten (a small part of).

The ingredients list tatrazine, which is banned in most circumstances in the EU/UK.

Getting people to buy this is an amazing marketing achievement.

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