[Image above] A California man recently filed a proposed class-action lawsuit against Mars, Inc. for putting consumers at risk by having titanium dioxide as a food additive in their Skittles candy. Credit: Public Domain Pictures
Watching the news can feel like a never-ending episode of Judge Judy, with headlines announcing updates on high-profile court cases that read like reality television shows. But among the sea of lawsuits, a proposed class-action lawsuit filed by a California man against Mars, Inc. for selling candy “unfit for human consumption” caught my eye because it touches on a topic I discussed last year on CTT—the food additive titanium dioxide (TiO2).
TiO2 is a white pigment used in a wide variety of products, including paints, paper, textiles, cosmetics, pharmaceuticals, and food. It has been used as a food additive since the 1960s, when the United States Food and Drug Administration approved it in 1966 (food additive code INS171), followed by the European Union in 1969 (food additive code E171).
Specifications guiding use of TiO2 in food have undergone minor revisions over the years, but that changed majorly last year when the European Food Safety Authority (EFSA) released an updated assessment on the safety of TiO2 as a food additive. Unlike previous assessments, the new report does not rule out a concern for genotoxicity (i.e., damage to genetic information within a cell) due to new data and strengthened analytic methods, particularly related to TiO2 in ultrafine nanomaterial form.
Since the May 2021 CTT post detailing development of the EFSA assessment, the European Commission announced a ban in January 2022 on TiO2 as a food additive in the European Union. A six-month phasing out period started on February 7, and the full ban goes into effect starting August 7.
The United Kingdom, which left the European Union in 2020, notably will not be banning this additive. The U.K.’s Food Standards Agency and Food Standards Scotland reviewed the EFSA opinion and decided the evidence did not support the conclusions made. They are now conducting a risk assessment on TiO2 that should be ready for release in early 2023.
Likewise, the United States’ Food and Drug Administration also is not changing its regulations regarding the use of TiO2 as a food additive, which restricts it to 1% of a food’s weight. Regardless, the California filing against Mars argues that the company’s failure to warn consumers about the potential dangers of TiO2 amounts to a fraud of omission, as well as other violations of California law.
Last month, The Guardian provided a thoughtful look at how the current treatment of TiO2 as a food additive illustrates the larger picture of how the EU and U.S. differ in their approach to chemicals regulation.
“The U.S. often waits until the harm is done, and the EU tries to prevent it to a certain extent. It often seems the U.S. favors the market over protection,” Tatiana Santos, chemicals manager at the European Environmental Bureau, says in The Guardian article.
The EU and U.S. lists of chemicals that are allowed in food and other products will likely grow even farther apart in the coming years. In April 2022, the European Commission published a restrictions roadmap that may lead to bans of up to 12,000 chemicals over the next five years in an effort to “detox” industry. In a first, the plan focuses on banning entire classes of chemical substances so as to end the industry practice of tweaking chemical formulations slightly to evade bans.