UPFs Unwrapped: The Rise of Ultra-Processed Food Scrutiny

There is a growing focus on the ingredients and contents in the foods Americans consume. Part of this interest can be traced to U.S. Department of Health and Human Services (HHS) Secretary Robert F. Kennedy Jr.’s Make America Healthy Again (MAHA) campaign and the White House’s recent MAHA Commission Assessment, while the rise in food- and health-related research has also played a role. The focus on what is in our food does not stop at the federal level, but has also spilled over to state legislatures, many of which are moving to ban or restrict certain food additives and dyes. In a first-of-its-kind move, a California legislator recently introduced A.B. 1264, which would ban ultra-processed foods, or UPFs, from being served or sold in schools. Other restrictions proposed by state legislatures include labeling requirements, such as Texas Senate Bill 25, currently awaiting signature by Governor Greg Abbott, which would require warning labels on foods containing one of a list of 44 different ingredients, many of which are frequently connected to UPFs.

In addition to the increase in food additive-related legislation, plaintiffs’ attorneys are beginning to target UPFs. For example, on December 10, 2024, plaintiffs’ lawyers filed a first-of-its-kind lawsuit against major food companies alleging that UPFs were the cause of a teenager’s fatty liver disease, type II diabetes, and other various health problems.

Amid the growing scrutiny of UPFs, this Advisory highlights major trends impacting the food industry — from evolving state and federal regulations to emerging litigation. The uptick in these trends demonstrates that companies need to develop strategies to account for federal, state, and litigation priorities.

Make America Healthy Again Assessment

On February 13, 2025, President Donald Trump established the President’s MAHA Commission with the purpose of studying the factors contributing to childhood chronic disease. Recently, the commission issued its first report, the MAHA Assessment (the Assessment), with a portion focused on the purported link between UPFs and childhood diseases. The Assessment references the NOVA food classification system’s definition of UPFs, but — for purposes of the Assessment — defines UPFs as “packaged and ready-to-consume products that are formulated for shelf life and/or palatability but are typically high in added sugars, refined grains, unhealthy fats, and sodium and low in fiber and essential nutrients.” The Assessment specifically attributes the consumption of UPFs to negative health outcomes in children by arguing that UPFs displace the nutrients of whole foods, increase weight gain, and have ingredients linked to attention-deficit/hyperactivity disorder, cardiovascular disease, carcinogenic diseases, and mental disorders. (There has been recent reporting that some studies cited in the Assessment are mischaracterized or do not exist, perhaps having been fabricated by artificial intelligence.)

Martinez v. Kraft Heinz Company, Inc. et al

In Martinez, pending in the Eastern District of Pennsylvania, the plaintiff is suing 11 food companies for their manufacturing, marketing, and sales of UPFs. Martinez cites to numerous studies and authorities purportedly warning of the alleged dangers of UPFs and describes these processed foods as purposely “engineered to be over consumed, addictive, and irresistible.” He argues that these “addictive” and “irresistible” UPFs, combined with the food industry’s marketing tactics, caused his health problems. These tactics, Martinez alleges, are partially due to advertising campaigns designed to appeal to children through the use of “vivid packaging” and cartoon characters. He further alleges that the diseases he developed — type II diabetes and fatty liver disease — “were unheard of in children 40 years ago [but] are now common.” Martinez’s causes of action include negligence and failure to warn of the danger associated with UPFs.

On March 31, 2025, several defendants named in the lawsuit filed a joint motion to dismiss, arguing, among other things, that the complaint fails to adequately plead causation, and that the First Amendment bars the claims.

California’s Assembly Bill 1264

Consistent with the focus on ingredients in America’s foods and how those ingredients are affecting health, California’s A.B. 1264 aims to ban UPFs from school meals in the Golden State. California has been the trailblazer in the regulation of food products and ingredients by passing legislation like the Food Safety Act in 2023, which banned food additives such as red dye no. 3 and brominated vegetable oil. California is now taking the lead in regulating UPFs. If enacted, A.B. 1264 will require the removal of UPFs from school meals beginning in 2028, with the goal that UPFs will be completely phased out of California schools by 2032.

If signed into law, the bill will provide a statutory definition of UPFs, the absence of which is raised in both the ongoing Martinez litigation, where the defendants’ motion to dismiss takes aim at the plaintiff’s “ill defined” definition of UPFs, and in the MAHA Commission Assessment. The proposed text defines UPFs as a food that contains any of the following ingredients, as defined by the U.S. Food and Drug Administration:

• Surface-active agents
• Stabilizers and thickeners
• Propellants, arraying agents, and gases
• Color and coloring adjuncts
• Emulsifiers and emulsifier salts
• Flavoring agents and adjuvants
• Flavor enhancers
• Surface-finishing agents
• Non-nutritive sweeteners

This definition is very broad, even including naturally occurring and well-understood ingredients.

In addition to the general phaseout of UPFs in schools, A.B. 1264 would require state regulators to develop a list of foods that are “particularly harmful.” These foods would be given priority in the phaseout, beginning in 2028. To determine whether a food or ingredient is “particularly harmful,” the proposed text allows regulators to consider “reputable, peer-reviewed scientific evidence” to determine whether it has been linked to cancer, cardiovascular disease, metabolic disease, developmental or behavioral issues, reproductive harm, obesity, or type II diabetes. Furthermore, when categorizing particularly harmful foods or ingredients, regulators are directed to evaluate whether the food substance is banned or requires warning labels in other jurisdictions, including international jurisdictions, due to adverse health consequences.

Texas Senate Bill 25

Texas Senate Bill 25 takes a different approach to the regulation of UPFs by requiring companies to disclose when a product contains an ingredient that has been deemed unsafe for human consumption in other countries. Many of these ingredients have been tied to UPFs. In step with the MAHA Assessment, Texas Senate Bill 25 aims to improve public health and combat chronic diseases. Following its passage by the legislature, Texas Senate Bill 25 was sent to Governor Greg Abbott for his approval on June 1, 2025. If signed, the bill will go into effect in 2027 and will require food products that contain any of the 44 enumerated ingredients, from synthetic food dyes to certain preservatives, to contain a warning label.¹ Senate Bill 25 will require the warning label to have specific language stating:

“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.”

Takeaways

Food policy changes are nothing new and are certainly not unique to the current administration. However, the growing scrutiny of food ingredients through government legislation and regulation, as well as through private litigation, raises the specter of sea changes in the food industry. Accordingly, the importance of sound science in decision-making cannot be understated. In preparing for potential reformulations or legal challenges, it is critical for companies to do the following:

• Be aware of evolving research.
• Prepare for potential mandates requiring warning labels for specific ingredients.
• Assess current product formulations.
• Monitor legislation targeting specific ingredients.
• Track developments and trends in food-related litigation.

As always, our team is here to help.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.