Democrats will control both the House and the Senate when the new Congress is seated in January. For companies that make, import or sell packaged food, we expect the most noticeable change to be in food chemical policy, including the long-running fight over whether states can set their own ingredient rules.
Over the past two years, most of the activity has come from HHS and FDA rather than Congress, mainly through voluntary industry commitments and a GRAS rule that is still pending. The new Congress brings different committee chairs and a different view of the issue industry has pushed hardest on, which is federal preemption of state additive laws.
Key points
FDA's proposal to make GRAS notification mandatory is open for comment until December 9, 2026, and is likely to be challenged once it is final.
We think Congress is now more likely to give FDA clear statutory authority over GRAS substances, and less likely to preempt state additive laws.
Companies that sell nationally should assume the state rules in California, West Virginia, Texas and possibly New York will stay in place for the foreseeable future.
Expect oversight hearings on food chemicals. The record they produce often shows up later in consumer litigation, so this is a good time to review no artificial, natural and dye-free claims.
Where things stand
Very little of the recent federal activity on food chemicals has come from Congress. Start with GRAS. Under the Food, Drug, and Cosmetic Act, a new food additive needs FDA approval before it goes on the market (21 U.S.C. § 348), but substances that qualified experts generally recognize as safe fall outside the definition of food additive (21 U.S.C. § 321(s)). A company can reach that conclusion on its own and never tell FDA. Notifying FDA through its GRAS program is currently voluntary (21 C.F.R. § 170.30; 21 C.F.R. Part 170, Subpart E).
In August, FDA proposed changing that (proposed rule). Notice would become mandatory for human and animal food, ingredients already on the market would get a one-year streamlined window to file, and full compliance would be due 18 months after the final rule takes effect. Comments close December 9, 2026. The proposal does not go as far as premarket approval, and FDA acknowledged limits on its authority. We expect a challenge once the rule is final, since the statute does not mention mandatory GRAS notices. Our earlier alert, FDA Moves to End Self-Affirmed GRAS, covers the proposal in more detail.
On dyes, FDA has formally revoked Red No. 3 under the Delaney Clause (21 U.S.C. § 379e), with deadlines of January 15, 2027 for food and January 18, 2028 for ingested drugs (90 Fed. Reg. 4628). The April 2025 plan to phase out six other petroleum-based dyes (Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2 and Green 3) is voluntary. Company commitments have been uneven, and nothing in the regulations requires them. We discussed this in our alert on synthetic food dyes and no-artificial-colors claims.
Several states have gone further on their own:
California's AB 418 bans Red 3, potassium bromate, propylparaben and brominated vegetable oil statewide starting January 1, 2027. The state has separately restricted dyes in school food.
West Virginia's HB 2354 already keeps seven synthetic dyes out of school food. Starting January 1, 2028, those dyes, along with BHA and propylparaben, are banned from all food sold in the state.
Texas SB 25 requires a warning on labels developed on or after January 1, 2027 for foods containing any of 44 listed ingredients. In February 2026, a federal court preliminarily blocked enforcement of the warning against members of the trade groups that challenged it. Texas has appealed to the Fifth Circuit.
In New York, the legislature passed the Food Safety and Chemical Disclosure Act (S1239) in April 2026. It would require companies to publicly disclose the safety basis for self-affirmed GRAS ingredients and would ban Red 3, potassium bromate and propylparaben. As of early November, Governor Hochul had not acted; she has until December 31. Similar bills have been introduced in California, New Jersey and Pennsylvania.
What a Democratic Congress changes
Food chemical reform has supporters in both parties. What changes in January is who controls the committees, and so whose bill becomes the starting point.
The congressional MAHA bloc also lost ground. Kansas Senator Roger Marshall, who founded the MAHA Caucus, lost his race, and several Kennedy-backed candidates in Iowa lost as well. Secretary Kennedy remains at HHS, but with fewer allies on the Hill.
Democrats already have bills drafted. Several were among the roughly two dozen food bills the House Energy and Commerce Health Subcommittee considered at an April 2026 hearing (committee memo), including:
The GRAS Act (H.R. 4958), sponsored by Rep. Frank Pallone (D-N.J.), which would end self-affirmed GRAS, require companies to notify FDA with safety evidence before treating a substance as GRAS, require periodic reassessment of some substances such as color additives, and fund the reviews through industry user fees.
The Food Chemical Reassessment Act (H.R. 4306), sponsored by Rep. Jan Schakowsky (D-Ill.), which would have FDA re-review listed chemicals every three years, beginning with common dyes, titanium dioxide and BHT.
The Ban Harmful Food Dyes Act (H.R. 5027), sponsored by Rep. Grace Meng (D-N.Y.), which would treat foods containing listed petroleum-based dyes as adulterated.
Pallone is the ranking Democrat on Energy and Commerce and would ordinarily be in line to chair it.
Legislation would also resolve the question of FDA's authority. The mandatory notice rule is vulnerable because the statute does not clearly provide for it. In its FY 2027 budget, FDA itself asked Congress for authority to require industry to submit post-market chemical safety data and reassessments, and requested funds to explore legislation on GRAS. A Democratic Congress seems more willing to provide that authority, and may go further than FDA asked.
Committee chairs will also control hearings, subpoenas and FDA's budget. Likely topics include how the voluntary dye commitments are going, staffing in FDA's Human Foods Program, and inspections.
Preemption
For much of the food industry, the main goal of federal legislation has been preemption of state additive laws. That now looks considerably harder to get.
The FDCA preempts state food labeling rules that differ from certain federal labeling requirements (21 U.S.C. § 343-1), but it has no comparable clause for food additives, so states keep their traditional power to ban or restrict ingredients. The industry-backed FRESH and Affordable Foods Act, a discussion draft from Rep. Kat Cammack (R-Fla.), would have paired mandatory GRAS notification with broad preemption of state laws on how food is used, labeled, sold and marketed (Harvard Food Law and Policy Clinic analysis). An industry coalition, Americans for Ingredient Transparency, formed in late 2025 to support that approach, and more than 80 public-health and consumer groups wrote to Congress opposing it.
In the outgoing Congress, preemption looked like the likely trade-off for GRAS reform. Democratic bills like Pallone's strengthen federal review without touching state law. Preemption could still come up in negotiations, perhaps in exchange for premarket review or user fees, but industry would likely have to concede a good deal more to get it.
As a practical matter, companies should plan on the state patchwork lasting. The next 14 months alone include the federal Red 3 deadline and California's statewide ban (both January 2027), the Texas warning requirement (January 2027, if the injunction is lifted), West Virginia's statewide dye ban (January 2028), and possibly New York's GRAS disclosure law.
Dates to watch
When | What | Notes |
|---|---|---|
Nov–Dec 2026 | Lame-duck session of the outgoing Congress | Probably the last opportunity for an industry-backed preemption deal. Senate Republicans are also expected to move pending nominees, possibly including FDA commissioner nominee Heidi Overton. |
Dec 9, 2026 | Comments due on FDA's GRAS rule | Comments can shape the final rule and preserve arguments for a later challenge. |
Dec 31, 2026 | Deadline for Governor Hochul to act on New York's GRAS bill | If signed, it would be the first state GRAS disclosure law. |
Jan 1, 2027 | California AB 418 bans take effect; Texas warning requirement begins for new labels | The Texas requirement is subject to the pending injunction and appeal. |
Jan 15, 2027 | Federal Red No. 3 deadline for food | Food containing Red 3 after this date is adulterated under federal law. |
Jan 2027 | 120th Congress convenes | Democratic chairs set the hearing and markup agenda. |
2027 | FY 2028 appropriations | Spending bills and report language can direct FDA's food chemical work without a separate statute. |
Sept 30, 2027 | FDA drug, device, generic and biosimilar user-fee programs expire | Reauthorization is must-pass legislation and often carries other FDA provisions, including food-related ones. |
Jan 1, 2028 | West Virginia statewide dye ban | Applies to all food sold in the state, not just school meals. |
A standalone food chemical bill would still need 60 votes in the Senate and the President's signature. We think the more likely paths are a bipartisan GRAS bill, since both parties have backed mandatory notification in some form, or food provisions added to the 2027 user-fee package.
Litigation risk
Any new federal law is probably a year or more away. The litigation risk is more immediate.
Testimony, committee reports and documents produced during oversight are often cited in class action complaints and attorney general investigations.
As companies reformulate, we expect closer scrutiny of claims like no artificial colors, no artificial flavors, natural and dye-free. Synthetic versions of naturally occurring ingredients, such as malic or citric acid used as flavorings, remain a common basis for suits in New York and elsewhere.
Even where a state law is enforced only by the attorney general, as in Texas, plaintiffs can argue that noncompliance makes a label misleading under general consumer protection statutes such as New York General Business Law § 349 and § 350. Separately, the New York bill would bar defendants in actions enforcing its ingredient bans from relying on FDA's recognition of those substances as safe.
Without a new federal preemption clause, defendants are left with the FDCA's existing labeling-uniformity provision and implied-preemption arguments, which offer limited protection against state ingredient bans.
Practical steps
Inventory your self-affirmed GRAS ingredients, including those in ingredients you buy from suppliers. For each one, note whether FDA has issued a no-questions letter, whether it rests on an independent expert panel, and who holds the supporting file. Both the federal rule and the New York bill start from that list.
Decide whether to comment on the GRAS rule by December 9. Comments on FDA's authority, the streamlined pathway, confidentiality and timing preserve those arguments for later.
Identify which products are sold into California, West Virginia, Texas, New York and states with pending bills, and check them against each state's restricted ingredients and warning rules.
Review no artificial, natural and dye-free claims against current formulas and supplier specifications, particularly after a reformulation.
Update supplier contracts to require ingredient certifications, GRAS documentation, advance notice of formula changes and indemnities for state-law violations. Under the New York bill, retailers with written supplier assurances would get a limited safe harbor.
Importers and foreign producers should confirm that their Foreign Supplier Verification Program records (21 C.F.R. Part 1, Subpart L) cover the regulatory status of each ingredient, since export formulas often differ from domestic ones.
If your company made a public commitment to remove synthetic dyes, make sure your records show where things stand. Committee staff may ask.
How MDRXLaw can help
MDRXLaw – Sauchik & Giyaur, P.C. works with food manufacturers, distributors, importers and foreign producers on FDA compliance, ingredient and labeling questions, and the defense of consumer and regulatory claims. We can help with GRAS comments, state ingredient compliance, label claim reviews, and responses to demand letters, class actions and agency inquiries.
This article is general information, not legal advice, and reading it does not create an attorney-client relationship. It reflects developments as of November 5, 2026.
Sources
FDA proposed rule, Substances Generally Recognized as Safe (Aug. 11, 2026)
FDA order revoking FD&C Red No. 3, 90 Fed. Reg. 4628 (Jan. 16, 2025)
House Energy & Commerce Health Subcommittee hearing memo (Apr. 29, 2026)
Harvard Law School Food Law and Policy Clinic: The Proposed FRESH Act and Its Preemption Provision
Food Safety Magazine: Court enjoins Texas food additive warning label law
