Ultra-Processed Foods Face Rising Scrutiny: What New State Laws, FDA Actions, and Private Litigation Mean for Food Manufacturers in 2025–2026

State and federal regulators are zeroing in on ultra-processed foods (UPFs), driving a wave of new legislation, enforcement priorities, and public scrutiny. Following the MAHA Report and FDA’s recent call for input, UPFs have become a top concern for lawmakers, health agencies, and advocacy groups. At the same time, private plaintiffs are testing new labeling and consumer-protection theories, increasing the litigation risk for food manufacturers. As momentum builds, companies should expect growing regulatory and legal challenges in how UPFs are made, labeled, and sold.

Key Takeaways: 

• UPFs Under Heightened Federal Attention: following the MAHA Report and FDA’s request for public input on a uniform definition, signaling potential national standards.
• UPFs Framed As “Public Nuisance”: State attorneys general are framing UPFs as the next “public nuisance” frontier with calls for enforcement similar to tobacco litigation.
• States Call for Disclosure Rules: including Wisconsin, Louisiana, Texas, Arizona, California, and Florida are proposing or enacting sweeping ingredient-disclosure rules, school-meal restrictions, and UPF labeling requirements.
• Risk Increased for Food Manufacturers: there is increasing compliance and litigation risk, including potential reformulation needs, refreshed front-of-pack claims, and closer monitoring of emerging laws and federal rulemaking.

Consistent with our last client alert on this topic, what some call “ultra-processed” foods (“UPFs”) continue to attract national attention in the wake of the Trump Administration’s Make Our Children Healthy Again Assessment (the “MAHA Report”) published on May 22, 2025. The MAHA Report claims that around 70% of the over 300,000 branded food products available in American grocery stores today are “ultra-processed” (though the claim is unsubstantiated and the category remains undefined – for now).¹ The MAHA Report also attributes nutrient depletion, increased caloric intake, weight gain, and exposure to synthetic food additives to UPFs. 

Building on the MAHA Report’s momentum, on July 25, 2025, FDA published a Request for Information seeking public comments to help develop a uniform definition for UPFs in the U.S. food supply, indicating that Trump’s HHS intends to regulate the use of UPFs. In fact, FDA indicated that “[a] uniform UPF definition, developed as part of a joint effort by federal agencies, would allow for consistency in research and policy to pave the way for addressing health concerns associated with the consumption of UPFs.” While the open comment period closed on September 23, 2025, FDA has not since indicated it will publish a rule defining UPFs. (For state efforts to define UPFs see the California, Arizona, and Florida updates below.)

Secretary of Health and Human Services Robert F. Kennedy, Jr. has further emphasized UPFs as ripe grounds for enforcement from state attorneys general, comparing UPFs to tobacco. He encouraged state AGs to treat UPFs as “public nuisance” at the Republican Attorneys General Association’s Fall National Meeting in September 2025. Heeding that call, just a few weeks ago in October 2025, attorneys general from across the nation discussed UPFs in the context of deceptive practices at the National Association of Attorneys General Fall Consumer Protection Conference. 

Advocacy groups have followed suit. Far from waiting for FDA to promulgate regulations and jump into the enforcement game, private plaintiffs have been testing novel litigation theories—including challenges to labeling requirements, consumer protection suits, and false advertising claims—aimed at reshaping how UPFs are marketed, labeled, and sold. On October 23, 2025, a coalition of 84 advocacy groups—including the Environmental Working Group, Consumer Reports, Earthjustice, and the Center for Food Safety—sent a joint letter to Congress urging lawmakers to oppose any legislative efforts that would limit state laws regulating “toxic chemicals” in food. The letter asserts that FDA “has failed to address the safety of food and food contact chemicals” for “many decades” and highlights the “important supplementary role played by states.”  

FDA may take note of the following state legislative efforts as it seeks to fulfill Secretary Kennedy’s and consumer advocates’ calls to action:

Wisconsin

On October 15, 2025, the Wisconsin State Assembly introduced Wisconsin Assembly Bill 550 (AB 550), which requires packaged food manufacturers to include a warning label that discloses “the use or existence of any of a list of ingredients in the food product, including certain color additives, synthetic antioxidants, solvents, sweeteners, stabilizers, thickeners, and preservatives.” The label must include the following statement: “WARNING: This product contains an artificial color, chemical, or food additive that is banned in Australia, Canada, the European Union, or the United Kingdom.” 

Wisconsin followed the lead of Louisiana and Texas, who enacted similar warning label legislation earlier this year, discussed further below. But Wisconsin may go a step further – on October 24, 2025, Wisconsin senators proposed a bill (SB 560) that would require the disclosure of food products that “contain[] cultured animal cells or cultured animal tissue derived from cultured animal cells” by including “lab-grown meat” on the product’s label.

Louisiana 

In June 2025, Louisiana enacted SB 14, which, like the Arizona and California laws discussed below, prohibits all public and state-funded nonpublic schools from serving foods containing any of the following fifteen “prohibited ingredients”: (1) blue dye 1; (2) blue dye 2; (3) green dye 3; (4) red dye 3; (5) red dye 40; (6) yellow dye 5; (7) yellow dye 6; (8) azodicarbonamide; (9) BHA; (10) BHT; (11) potassium bromate; (12) propylparaben; (13) acesulfame potassium; (14) aspartame; and (15) sucralose, starting in the 2028-2029 school year.

Louisiana’s law goes further, requiring the label disclosure of 44 “harmful ingredients” on food products offered for sale in Louisiana starting in January 2028, through a QR code that links to a webpage that includes the following disclaimer: 

“NOTICE: This product contains [insert ingredient here]. For more information about this ingredient, including FDA approvals, click HERE.”

The list of “harmful ingredients” includes common ingredients such as artificial sweeteners (i.e., aspartame, sucralose) and dyes (i.e., red dye 40). The disclosure requirement does not apply to drugs, dietary supplements, alcoholic beverages, food prepared and labeled in retail establishments, or medical foods.

The disclosure requirements don’t stop with food manufacturers—food service establishments who “cook[] or prepare[] food using seed oil,” which include canola, corn, cottonseed, grapeseed, rice bran, safflower, soybean, and sunflower, must display a disclaimer on menus or in another clearly visible location stating: “Some menu items may contain or be prepared using seed oils.” 

Texas 

In June 2025, Texas enacted SB 25, which requires food manufacturers to disclose the presence of one or more of 44 food additives or ingredients on their products’ front labels. The list includes common ingredients, including color additives (e.g., Blue 1 & 2, Green 3, Red 3, 4, & 40, Yellow 5 & 6, titanium dioxide), preservatives (e.g., BHA, propylparaben), emulsifiers (e.g., DATEM), lye, and bleached flour, among others. The warning requirement applies to food product labels “developed or copyrighted” on or after January 1, 2027. The statute requires the warning to: (1) be printed in a font size “not smaller than the smallest font used to disclose other consumer information required by the [FDA]”; (2) be placed in a “prominent and reasonably visible location;” and (3) have “high contrast with the immediate background to ensure the warning is likely to be seen and understood by the ordinary individual under customary conditions of purchase and use.” 

On September 26, 2025, the Texas Department of State Health services published a proposed rule implementing SB 25, which would require food manufacturers to display the following warning label on foods containing any of the 44 specified ingredients: “WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.” The proposed rule does not require manufacturers to specify the offending ingredient, however. The open comment period for the proposed rule ended on October 27, 2025.

These new or proposed labeling laws provide a blueprint for other state or federal regulations. While they contemplate similar labels across similar ingredients, they each differ in scope:

Arizona

On April 14, 2025, Arizona enacted the Arizona Healthy School Act (HB 2164), which prohibits any public school from selling UPFs on school campuses during school hours starting in the 2026-2027 school year. HB 2164 defines “ultraprocessed food” as a food or beverage containing one more of the following eleven ingredients: (1) potassium bromate; (2) propylparaben; (3) titanium dioxide; (4) brominated vegetable oil; (5) yellow dye 5; (6) yellow dye 6; (7) blue dye 1; (8) blue dye 2; (9) green dye 3; (10) red dye 3; (11) red dye 40. It has yet to be seen how the law will affect food manufacturing in Arizona, but other states have followed suit, adding to the list of potentially verboten ingredients

California 

Following Arizona’s lead, on October 8, 2025, Newsom signed the Real Food, Healthy Kids Act (AB 1264) into law. The law is an effort to phase out certain UPFs from school meals in California. Notably, AB 1264 codifies a legal definition for UPFs. The definition focuses on the types of substances present in the product and the role they play in production, rather than prohibiting a static list of additives. The statute defines UPF as any food or beverage that contains: 

“Surface-active agents; stabilizers and thickeners; propellants, aerating agents, and gases; colors and coloring adjuncts; emulsifiers and emulsifier salts; flavoring agents and adjuvants; or flavor enhancers, excluding spices and other natural seasonings and flavorings; and either: High amounts of saturated fat, sodium, or added sugar, or a nonnutritive sweetener or other substance[.]”

The law also requires California’s Department of Public Health to adopt regulatory definitions for “ultraprocessed foods of concern,” which will be regulated under the law, and “restricted school foods” by June 1, 2028. The law will further prohibit food vendors selling or “offering restricted school foods and ultraprocessed foods of concern to a school” beginning July 1, 2032. While AB 1264 does not create a private right of action, given the state’s size and economic influence, it will provide the state the opportunity to shape the future of food production across the country.

Florida 

On October 7, 2025, Florida Commissioner of Agriculture Wilton Simpon issued a press release applauding the Trump Administration’s efforts to address childhood nutrition amid growing concerns associated with the consumption of UPFs. Simpson indicated that Florida is “prepared to take decisive measures . . . to define ultra-processed foods and protect our children’s health.” 

This comes several months after Florida’s Senate withdrew AB 1826 from consideration on May 3, 2025. Modeling Arizona’s HB 2164, AB 1826 sought to define ultraprocessed food as a food or beverage that contains at least one or more of the following eleven ingredients: (1) potassium bromate; (2) propylparaben; (3) titanium dioxide; (4) brominated vegetable oil; (5) yellow dye 5; (6) yellow dye 6; (7) blue dye 1; (8) blue dye 2; (9) green dye 3; (10) red dye 3; (11) red dye 40. Like California’s AB 1264, Florida’s bill sought to restrict public schools from selling UPFs during school hours. Even though AB 1826 was withdrawn, given the momentum in Florida and nationwide to regulate UPFs, we are likely to see a new bill regulating UPFs in the next legislative session.

Emergent Trends in Private Litigation

Plaintiffs’ lawyers have also sought to capitalize on the UPF craze. A consortium of plaintiffs’ attorneys filed a tort action last year on behalf of a single named plaintiff in the Eastern District of Pennsylvania (Martinez v. Kraft Heinz Company, Inc., et al.) against Kraft Heinz, Nestle USA, General Mills, PepsiCo, Kellogg, Conagra, and other food manufacturers, accusing them of producing highly addictive ultraprocessed foods and marketing them to children. While the court dismissed the complaint in its entirety because the plaintiff failed to identify the specific products he consumed that allegedly caused his harm, the court did not reach the question of whether the plaintiff’s injuries were attributable to UPFs, leaving open the possibility of future litigation.

Recently filed false advertising class action complaints demonstrate that the plaintiffs’ bar is evolving their run-of-the-mill consumer fraud theories to cast UPFs as central to consumer protection and false advertising claims. For example, one action filed in New York state court alleges that Continental Mills mislabeled their Cinnamon Swirl Quick Bread Mix with the front label statement “No Artificial Colors, Flavors, Preservatives”—when, in fact, the product contained silicon dioxide, which the plaintiff defines as an artificial preservative and “marker” for a UPF.² Another, filed in the Central District of California, alleges advertising for a kimchi product is misleading because it contains sorbitol—a “highly processed” additive—which renders the product “ultra-processed” and not “naturally fermented” as promised on the front label.³

Implications for Companies Developing and Selling UPFs

Emergent legislation on UPFs and an active plaintiffs’ bar present a host of new considerations for food manufacturers. In particular, for SKUs that will face school-channel restrictions in California, or will be required to include a front-of-pack warning in Texas, companies may consider product reformulation. Companies may also reevaluate certain front label representations, such as calling a product “natural,” when, in fact, the product contains a “marker” for UPFs—such as silicon dioxide or other preservatives. And companies will need to keep abreast of state and federal legislative efforts to regulate and even ban the use of UPFs in American food manufacturing.

O’Melveny will monitor further developments related to UPFs. Please contact the attorneys listed on this Client Alert or your O’Melveny counsel if you have any questions.

¹ Make America Healthy Again Commission, “The MAHA Report: Make Our Children Healthy Again,” The White House. 2025. Available at https://www.whitehouse.gov/maha/.
² Crystal Handsome v. Continental Mills Inc. (Case No. 535263/2025) (https://search.cnscaseportal.com/civil-litigation/case/30603858/docket).
³ Tran, et al. v. Daesang Holdings California, Inc. (Case No. 2:25-CV-08745).

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Steve Brody, an O'Melveny partner licensed to practice law in the District of Columbia and Virginia; Hannah Y. Chanoine, an O’Melveny partner licensed to practice law in Massachusetts and New York; David Deaton, an O’Melveny partner licensed to practice law in California; Houman Ehsan, an O’Melveny partner licensed to practice law in California; Lauren Kaplan, an O’Melveny partner licensed to practice law in California; Daniel R. Suvor, an O’Melveny partner licensed to practice law in California; Hannah E. Dunham, an O’Melveny counsel licensed to practice law in California and the District of Columbia; and Marcus S. Pipitone, an O’Melveny associate licensed to practice law in California, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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