Food companies face a rapidly shifting litigation landscape on three fronts: (1) state laws requiring on-package warnings for certain food ingredients (e.g., Louisiana S.B. 14; Texas S.B. 25), (2) state bans targeting specific U.S. Food and Drug Administration (FDA)-listed color additives (e.g., West Virginia H.B. 2354), and (3) emerging consumer and municipal lawsuits alleging harms from “ultra-processed” foods. Recent developments – including an industry challenge to West Virginia’s new color-additive law, a high-profile dismissal of an “ultra-processed” foods test case, and a new lawsuit brought by the City of San Francisco – offer early signals of how courts may treat compelled warnings, preemption, constitutional claims, and pleading standards in the months ahead.
Takeaways
- Two recent state warning laws—Louisiana S.B. 14 and Texas S.B. 25—create divergent disclosure regimes for foods containing specified ingredients, with different label text, formats, and timelines. Both include federal preemption “off-ramps.” Expect First Amendment and FFDCA preemption challenges.
- West Virginia’s H.B. 2354 bans seven FDA-listed synthetic color additives (plus BHA and propylparaben) statewide in 2028 and sooner in school nutrition programs; industry has sued, invoking equal protection, bill-of-attainder, and vagueness theories.
- “Ultra-processed foods” (UPFs) litigation:
- A federal judge in Philadelphia dismissed a test case brought by a consumer for failure to link specific products to alleged injuries—signaling courts will demand product-specific facts and causation, not categorical critiques of “processing.” Nevertheless, more UPF lawsuits are likely.
- San Francisco’s December 2, 2025, lawsuit against 10 major food manufacturers adds a new public-cost-recovery theory to the landscape and may spur similar actions by other public entities.
The Current Landscape
Ingredient-Warning Statutes (Louisiana & Texas)
- The Laws. Both state laws trigger warnings when a product contains one or more of 44 listed ingredients (lists largely overlap but are not identical). Louisiana (S.B. 14) requires an on-package QR code plus a web notice; Texas (S.B. 25) mandates direct label text and extends the warning to online sales. See B&D’s news alert for more information.
- Timing. Texas’ law came into effect September 1, 2025, with warning requirements applying to labels developed/copyrighted on or after January 1, 2027; implementing regulations must be issued by December 31, 2025. Louisiana’s labeling requirements take effect January 1, 2028.
- Preemption. Texas S.B. 25 suspends if FDA or the U.S. Department of Agriculture prohibits or requires warnings for an ingredient, determines that an ingredient is “safe,” or requires “processed/ultra-processed” labeling; Louisiana S.B. 14 suspends if federal action is at least equivalent or more restrictive.
- Litigation Posture. A federal court recently enjoined a provision of California’s Proposition 65 food warning regulation on First Amendment grounds, underscoring the vulnerability of compelled commercial-speech mandates that are not “purely factual and uncontroversial.” Expect similar arguments against S.B. 14/S.B. 25, along with FFDCA preemption and Dormant Commerce Clause claims.
West Virginia’s Color-Additive Ban
- The Law. H.B. 2354 prohibits FD&C Red 3, Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2, Green 3 (and separately BHA and propylparaben) in foods sold in-state; school nutrition restrictions began August 1, 2025, and the statewide ban is effective January 1, 2028.
- The Challenge. On October 6, 2025, the International Association of Color Manufacturers (IACM) sued in federal court, alleging the statute violates equal protection, operates as a bill of attainder, and uses undefined terms (e.g., “poisonous and injurious”), inviting arbitrary enforcement. The complaint highlights tension with FDA’s certification/listing regime and emphasizes effective dates and supply-chain impacts. Expect defenses to invoke state police powers.
- Developments. On October 8, 2025, the court denied the plaintiff’s motion for a temporary restraining order, on the grounds that parts of the law had already gone into effect and other parts were not effective until 2028. The court is still considering the motion for a preliminary injunction.
- Federal Backdrop. FDA has revoked the authorization for Red No. 3 in food effective in 2028, but it encourages the voluntary phaseout of this and other artificial colors. These federal actions will feature in both preemption and reasonableness arguments.
Consumer Ultra-Processed Food Litigation
- The Challenge. In August 2025, a federal judge in Philadelphia dismissed claims that defendants engineered “ultra-processed” foods to be addictive and harmful, because the complaint failed to identify the specific products linked to the plaintiff’s conditions, despite listing 100+ manufacturers (including Kraft Heinz, Mondelēz, and Coca-Cola). The decision suggests generalized attacks on “processing” will face Rule 12(b)(6) headwinds absent product-specific exposure and causation allegations.
- Developments. In September 2025, the plaintiff consumer moved for leave to file an amended complaint. That motion is now before the court.
- The Context. While the definition of UPFs is debated, researchers often use the term to refer to many packaged snacks, sweets, and soft drinks that contain substances extracted from whole foods or synthesized. Courts are likely to see future claims recast as product-specific deception, failure-to-warn, or unfair-practice claims, supported (if possible) by individualized medical/exposure evidence. Several law firms are soliciting persons with type-2 diabetes or non-alcoholic fatty liver disease to become plaintiffs in UPF lawsuits against food companies (see, e.g., here, here, and here).
San Francisco’s Ultra-Processed Food Litigation
- The Challenge. On December 2, 2025, the San Francisco City Attorney announced the nation’s first municipal lawsuit targeting UPFs. Filed in San Francisco Superior Court on behalf of the State of California, the lawsuit names 10 major food manufacturers. The City alleges these companies engaged in unfair and deceptive acts under California’s Unfair Competition Law and created a public nuisance by contributing to chronic diet-related disease. The lawsuit seeks unspecified damages to recover public‑health costs borne by city and county systems.
- The Complaint. According to the complaint, manufacturers marketed UPFs as healthy or natural despite long ingredient lists that include synthetic additives, stabilizers, and substances not used in home kitchens. The research the City cites to links UPFs to obesity, type 2 diabetes, cardiovascular disease, cancer, and cognitive decline.
- Context. Earlier this year, California enacted a bipartisan measure that became the nation’s first law to formally define UPFs, creating a framework for eventually removing UPFs from school settings. The state has also prohibited several additives – including certain artificial food dyes associated with behavioral issues in children – from use in schools. And back in 2010, San Francisco took an early step in this direction by barring fast-food restaurants from offering free toys with kids’ meals. This action follows San Francisco’s history of successful cost‑recovery litigation in areas such as opioids, tobacco, and lead paint.
- Together with the Philadelphia dismissal, San Francisco’s suit illustrates the twin tracks of UPF litigation: individualized personal-injury claims and public-cost-recovery theories.
Why This Matters Now
States are simultaneously experimenting with (1) compelled warnings, (2) categorical ingredient bans, (3) processing-based tort and consumer-protection theories, and (4) public-cost recovery theories. Each path tees up distinct but overlapping issues: First Amendment compelled-speech challenges, FFDCA preemption, Dormant Commerce Clause risks for multi-state distribution, and heightened pleading/causation hurdles. With key effective dates approaching (Texas and Louisiana) and West Virginia school restrictions already in force, companies may want to calibrate compliance and litigation strategies in parallel. In the near term, companies should (a) inventory products sold in the affected states, (b) assess whether ingredient lists trigger new labeling or ban provisions, and (c) coordinate regulatory, labeling, and litigation strategies across jurisdictions—rather than treating each statute or lawsuit in isolation.
