California Enacts Law Defining “Ultra-Processed Food”

AB 1264’s “UPF” Definition

The law defines “UPFs” as any food or beverage that contains one or more ingredients with specified technical effects as defined by FDA regulations, and either (1) “high amounts of saturated fat, sodium, or added sugar” or (2) a “nonnutritive sweetener” or other specified substances. Again, this definition is limited to the products in the context of K-12 schools only.

The specific technical effects of ingredients cited in first part of the “UPF” definition are:

• Surface-active agents, as defined in 21 CFR § 170.3(0)(29).
• Stabilizers and thickeners, as defined in 21 CFR § 170.3(0)(28).
• Propellants, aerating agents, and gases, as defined in 21 CFR § 170.3(0)(25).
• Colors and coloring adjuncts, as defined in 21 CFR 180.3(o)(4).
• Emulsifiers and emulsifier salts, as defined in 21 CFR 170.3(0)(8).
• Flavoring agents and adjuvants, as defined in 21 CFR 170.3(0)(12).
• Flavor enhancers, as defined in 21 CFR 170.3(0)(11), excluding spices and other natural seasonings and flavorings listed in 21 CFR 182.10.
• Nonnutritive sweeteners as defined in 21 CFR 160.3(0)(19).

The law defines “high amounts” of the three nutrients as follows :

• Foods or beverages containing 10 percent or greater of total energy from saturated fat.
• Foods or beverages containing a ratio of milligrams of sodium to calories that is equal to or greater than 1:1.
• Foods or beverages containing 10 percent or greater of total energy from added sugars.

The other specified substances (in addition to non-nutritive sweeteners) include:

• D-sorbitol;
• Erythritol;
• Hydrogenated starch hydrolysates;
• Isomalt;
• Lactitol;
• Luo Han fruit concentrate (i.e., monk fruit concentrate);
• Maltitol;
• Steviol glycosides;
• Thaumatin; and
• Xylitol.

Additionally, the law expressly notes that the presence of salt or sodium chloride, spices or other flavorings, or natural color additives do not, by themselves, cause a food or beverage to be categorized as a “UPF.” The law also excludes the following foods and beverages from its definition of “UPF”:

• Commodity food specifically made available by USDA.
• A raw agricultural commodity as defined in Section 110020 of California’s Health and Safety Code.
• An unprocessed locally grown or locally raised agricultural product as defined in 21 CFR 210.21(g)(2).
• Minimally processed prepared food as defined in Section 49015 of California’s Food and Agriculture Code, including, but not limited to, whole, cut, sliced, diced, canned, pureed, dried, and pasteurized foods.
• Class 1 milk as defined in Section 61932 of California’s Food and Agricultural Code.
• Alcoholic beverages as defined in Section 23004 California’s Business and Professions Code.
• Medical foods, as defined in 21 CFR 101.9(j)(8), only if exempted by the department by regulation.
• Infant formula, as defined in 21 CFR 107, only if exempted by the department by regulation.

Other Key Provisions

The law defines “restricted school foods” as food or beverages that are excluded from AB 1264’s definition of “UPF,” contain one or more of the ingredients with technical effects specified in the “UPF” definition described above, and are restricted from service or sale in school as defined by forthcoming regulations adopted by CDPH.

Accordingly, the law requires CDPH to adopt regulations by June 1, 2028 that identify “UPFs of concern” and “restricted school foods” based on the following factors: whether the substance or group of substances are subject to restrictions, bans, or warning requirements in other jurisdictions due to concerns about adverse health consequences; whether , based on reputable peer-reviewed science, they are linked to health harms or adverse health consequences or may be hyperpalatable or contribute to food addiction; whether the food has been modified to be high in saturated fat, added sugar, or salt; whether the food meets FDA’s updated definition of “healthy”; and whether the substance is a “common natural additive.” The law also includes some specific criteria that CDPH must follow when assessing the available peer reviewed scientific evidence to reach the above determination, including rigorously examining the science and considering any reputable peer-reviewed scientific evidence that would call into question any determination that a substance is linked to health harms or adverse health consequences.

AB1264 also requires that “competitive foods” (i.e. the foods that are sold in schools outside of school meals) only include fruit, vegetable, dairy, protein, or whole grain rich food items; foods with a fruit, vegetable, dairy, protein, or whole grain item as its first ingredient; or combination foods containing at least one-quarter cup of fruit or vegetable that meet certain standards. “Competitive beverages” can only include plain or carbonated water; nonfat flavored milk, unflavored milk or nondairy milk; or vegetable and fruit-based beverages that meet certain standards. Competitive foods and beverages cannot include “UPFs of concern” or “restricted school foods” beginning July 1, 2035. Additionally, the law states that by December 31, 2027, competitive foods cannot contain the following certified colors:

• Blue 1 (CAS 3844-45-9)
• Blue 2 (CAS 860-22-0)
• Green 3 (CAS 2353-45-9)
• Red 40 (CAS 25956-17-6)
• Yellow 5 (CAS 1934-21-0)
• Yellow 6 (CAS 2783-94-0)

Further, beginning February 1, 2028, and annually through February 1, 2032, vendors selling food or beverages to K-12 schools are required to provide CDPH detailed product-level reports, including: product name; total quantity sold to schools; whether the product is a “UPF,” a “UPF of concern”, or a “restricted school food;”and the product’s nutritional and ingredient information, among other pieces of information.

AB 1264 also phases out “UPFs of concern” and “restricted school foods” from school meals in three stages:

• July 1, 2029: Schools will be required to begin reducing use of “UPFs of concern” and “restricted school foods.”
• July 1, 2032: Vendors will be barred from selling “UPFs of concern” and “restricted school food” to schools.
• July 1, 2035: School meals will no longer be permitted to include “UPFs of concern” or “restricted school foods.”

Next Steps

Although the law applies only to K-12 school settings, its effects have the potential to ripple beyond school meals. A legal definition of “UPF” and regulatory pathways to identify and restrict foods “of concern” raises important considerations, particularly given the lack of scientific consensus around how, if at all, “UPFs” should be defined. We will continue to monitor regulatory and legislative developments on this and related topics.

Authored by Veronica Colas, Alex Tablan, and Chigozie Akah.