The duty to protect (some of us)

— OPINION —

We tend to think of public policy as policy that benefits “the public.” Yet few policies, even within the domain of food safety, aim to protect a hypothetical “average consumer” so much as they seek to prevent harms to vulnerable populations or individuals. In some instances, a policy may impose too great a burden on “most” of us to justify protecting “some” of us, but whatever the case, policymakers must act with transparency, on the basis of the best available, unbiased data, or risk losing their constituents’ confidence.  

Unfortunately, policymakers too often fall short of this ideal. We got another example this past week when the California Department of Public Health (CDPH) denied a 2022 petition requesting a warning label on foods containing synthetic food dyes. My organization, Consumer Federation of America, joined Center for Science in the Public Interest and other consumer groups in filing the petition in part because California EPA scientists had concluded in an exhaustive, 300-plus page report a year earlier, that synthetic dyes “can cause or exacerbate neurobehavioral problems in some children,” and that “the neurobehavioral effects of synthetic food dyes in children should be acknowledged and steps taken to reduce exposure to these dyes in children.” Requiring a warning label on foods with dyes, as the EU has done since 2010, would achieve that exposure reduction goal by giving parents more information, and hopefully, creating an incentive for many food manufacturers to reformulate. 

But CDPH saw it differently. The agency’s 3-page denial letter provides little detail, but in disputing the evidentiary basis linking dyes to attention-deficit hyperactivity disorder (ADHD) and other pathologies, the agency chose to emphasize that the dyes appear to only affect some children. Since the link is not “universal,” the agency reasoned, then “food label warning statements may not be effective, may be counterproductive, and/or may cause undue anxiety and alarm.” 

No one knows for sure just how many children are affected by food dyes, and to what extent. But as California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) report points out, the percentage of kids in the U.S. diagnosed with ADHD has increased from roughly 6.1 percent to 10.2 percent in the past 20 years. Factors other than food dyes likely contributed to this increase, but given the OEHHA’s conclusion that “multiple evidence streams” indicate that “synthetic food dyes can impact neurobehavior,” a warning label seems prudent. Indeed, just last month, California Gov. Gavin Newsom signed into law the California School Food Safety Act, which bans food dyes from school meals.  

Measures to protect vulnerable children from food dyes also make sense because going without these chemicals poses little burden to the rest of us. Even if food manufacturers responded to a warning label requirement by eliminating artificial dyes altogether from food, all but the most obsessive of consumers would adjust to the duller palate of ultra-processed food on offer. Other public policies implicate thornier ethical dilemmas. Vaccines, for example, justify regulators in approving greater risks to vulnerable populations for the prospect of outsized benefits, such as herd immunity to polio, which we at least used to agree was a good thing. “Sin taxes” on products like alcohol, tobacco, or soda, must balance the benefits of deterring consumption against restricting consumers’ freedom and potentially widening wealth inequalities. By comparison, a warning requirement on food dyes should be a slam dunk.

But again, transparency is key. The CDPH has indicated that a warning requirement will create costs that outweigh any benefits of reducing food dye consumption, such as fewer and less severe cases of ADHD. But it offers little explanation why. How would warning labels be “counterproductive?” What are the costs of “undue anxiety and alarm” the agency refers to? How were they calculated? Who provided the data and did they have a financial interest in one policy or another? Sometimes, some of us may have to go without protections for the greater good. Not everywhere is a peanut-free zone. But a full explanation of why some of us do not deserve protection is essential to keeping faith in public institutions among us all.  

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