Last week, California Assemblymember Jesse Gabriel introduced AB 2244, which would create a state certification program for “not ultraprocessed” foods and require large food retailers to “prominently display” the foods within their stores. The bill represents a pragmatic and innovative approach that has the potential to revolutionize American diets.
For supporters of an outright ban on UPFs, or at least a warning label (like the one proposed in the bipartisan Childhood Diabetes Reduction Act), a label certifying that a food is not ultra-processed may seem timid, or even counterproductive. Research on front-of-pack labeling indicates that consumers benefit most from information about a product’s harmful qualities (e.g. “high in added sugars”). Food marketers will take care of the rest (e.g. “high in fiber”). Indeed, CFA has long objected to FDA’s efforts to develop a “healthy” symbol for packaged foods, arguing it would likely create confusion and lead some consumers to choose packaged (and thus labeled) products over comparatively healthier, unpackaged goods, like fresh produce.
Nevertheless, as we argued in support of FDA establishing a “certified less processed” label, the approach offers several advantages. First, it skirts problems related to the breadth of the UPF definition, and the uncertainty surrounding why UPFs appear to cause disease. Few of us have the resources (or desire) to completely avoid UPFs, some of which may provide nutritional benefits that outweigh their harms. This ubiquity counsels against slapping a warning label on everything from Strawberry Lucky Charms Mario Galaxy edition cereal to 365 Brand Organic Plain Yogurt (Nova Group 4 thanks to the emulsifier pectin). Second, a “non-certified” label could help to level the playing field for processed food manufacturers that rely on simpler, and often more expensive, ingredients. Third, the label could go a long way towards educating consumers and dispelling confusion about UPFs.
Notably, independent certifiers, such as the Non-UPF Program, already offer food manufacturers a credible label to inform consumers about products that are not Nova Group 4. However, these certifications must compete in a marketplace awash in meaningless claims. Even with high consumer demand for less processed foods, market failure may delay widespread adoption of these labels for years.
This is where the second element of AB 2244 comes into play: by requiring food retailers to “prominently display” items that bear the non-UPF seal, the law creates a powerful incentive for food manufacturers to get certified. It also directs the state’s regulatory might at an appropriate target: food retailers. Just four corporations—Walmart, Kroger, Costco, and Albertsons—control more than two-thirds of the U.S. grocery market. These companies demand special treatment from food producers, allowing them to squeeze out smaller competitors and undersupply the market—whether that means generating food deserts or neglecting to stock any mayonnaise that does not contain “natural flavor.” Indeed, food retailers increasingly seek to generate revenue through the sale of data, rather than food. Grocery retail media, specifically, was projected to reach $8.5 billion in 2024. As Kroger explained in a recent SEC filing:
“The retail media business carries an attractive margin profile relative to our traditional operations and is an important driver of our digital profitability. We intend to continue investing in the technology, talent, and collaborations needed to grow this business and expand the range of solutions we offer to advertisers.”
California’s AB 2244 prods retailers like Kroger to focus on solutions for people buying food in their stores, rather than for advertisers.
Public policies to promote heathier retail food environments are nothing new. Food reformers like Jerold Mande have argued, for example, that “SNAP retailers should be prohibited from in-store (brick and mortar and on-line) marketing of unhealthy foods such as sugar-sweetened beverages (SSBs) (e.g. endcap displays and favored placement, including for online purchases).” In other words, corporations like Walmart should only benefit from tens of billions of dollars in SNAP benefits each year if they arrange their stores in a way that helps customers eat a healthier diet.
AB 2244’s “prominent display” requirements fall well short of banning soda endcaps. Under the law, a store selling “more than 25 certified items,” would have to “prominently display” via endcap, checkout aisle, store entrance or other “equally prominent location” at least 3 certified items. Most retailers will not find these restrictions very disruptive. The requirement nevertheless sets an important precedent, which California regulators could ratchet up as more food manufacturers adopt the certification.
Eventually other states, or the federal government, may follow California’s lead. A federal policy could avoid problems like conflicting UPF definitions, perhaps opting for something closer to Nova than the California code, which expands the “UPF” category to include any foods with high amounts of saturated fat, sodium, or added sugar. But don’t hold your breath. The Administration continues to labor under the fantasy that food companies will voluntarily undertake actions that effectively put public health over their shareholders. In the name of eliminating “petroleum-based food dyes,” FDA has even made it more difficult to identify some UPFs that use “natural” food coloring.
Only time will tell whether the Administration can align its stated interest in helping consumers “eat real food” with policies that support that objective. In the meantime, bills like California’s AB 2244 offer tangible hope for progress. That’s good news because, as the Administration has correctly pointed out, our food is making us sick. State lawmakers should not hesitate to act.