A new California bill could pit farmers and food processors against state legislators as one lobbyist says it opens up a new field of class-action lawsuits similar to Proposition 65.

Assembly Bill 1264 from Assemblymember Jesse Gabriel (D-Encino) would require the Office of Environmental Health Hazard Assessment to define “particularly harmful ultra-processed foods” and by 2032, phase them out of school lunches.

It passed the Assembly earlier this month and is now in the state Senate.

But Dennis Albiani, president of California Advocates, says the state already has the power to limit ingredients allowed in school lunches.

The proposed list of ultra-processed is too broad, including wax coatings used on apples, canned tomatoes, honey, and nutritional drinks, Albiani said. The California Grocers Association said 80% of the items at the typical grocery store would qualify as “ultra-processed.”

“California tomatoes are enjoyed ripe off the vine and in many forms like pasta sauce, tomato paste, canned chili, salsa, and more,” the California Tomato Growers Association said in a statement. “AB 1264 manufactures a definition of ‘ultra-processed foods’ that is unnecessary and overly broad.  If you claim that you want to support California-grown products, then you need to protect the proven-safe foods that get added value from processing.”

Albiani said his firm has identified 31 national law firms advertising to prepare class-action lawsuits for people affected by ultra-processed food.

California Advocates represents the Pacific Egg and Poultry, Association of California Egg Farmers, California Pear Growers Association, and California Association of Wheat Growers. California Farm Bureau and other groups oppose the bill.

“The entire food system is being victimized over this terminology that doesn’t have a food safety or nutritional basis,” Albiani said. “That why you see a lot of discussion about (ultra-processed food) but when it’s really time to define it and do what falls on one side of the line and what falls on the other, there is no nutritional- or safety-agreed upon cut points.”

AB 1264 Would Phase Out Ultra-Processed Foods by 2032

The bill directs school to begin phasing “ultra-processed” foods out and by 2032, they would be banned.

Officials would look to products banned in other jurisdictions, or substances linked to a variety of diseases and medical disorders to create the list. It lists nine categories of substances that qualify as “ultra-processed.”

“Our public schools should not be serving students UPF products filled with chemical additives that can harm their physical and mental health and interfere with their ability to learn,” Gabriel said in a statement. “In California, Democrats and Republicans are joining forces to prioritize the health and safety of our children and we are proud to be leading the nation with a bipartisan, science-based approach.”

A financial analysis estimates millions of dollars to tens of millions of dollars to pay for food alternatives and nearly $3 million in costs for staffing.

The Assembly Appropriations Committee in its analysis said that studies show only correlation between ultra-processed foods and obesity, cancer, and diabetes, not causation. The Appropriations Committee further questioned the ability of legislators to come up with a list of ultra-processed foods.

The committee cited the American Chemistry Council, which said the bill would create an “unworkable definition” resulting in higher costs for consumers and without the desired public health outcomes.

“If the Advisory Committee for the Dietary Guidelines for Americans comprised of internationally known experts were unable to find a workable definition of ultra-processed foods, it is hard to imagine a scenario where the legislature can arbitrarily designate one and then expect an agency with little food or nutrition experience to build upon it,” the Chemistry Council stated.

Scientific Ingredient Vetting Will Protect Student Health: Albiani

The nine categories are so broad, they include foods already shown to be safe, Albiani said. For example, the first category defines “surface active agents” as being “ultra-processed,” which includes egg whites or heavy cream.

Albiani says under the Department of Public Health, the state can already limit what food goes into school lunches.

“Use existing law, go through an ingredient review — ingredients that they determine as unsafe — then take those out of the school nutrition programs,” Albiani said.

By eliminating what ingredients shouldn’t be included, experts don’t fall into the trap of trying to define “ultra-processed.”

Creating a list could open the door to litigation, similar to Prop 65.

Between 2014 and 2017 Prop 65 settlement payments exceeded $25 million each year, with a majority going to attorneys, according to a February report by Conkle Law. The fastest growing area of litigation in Prop 65 is in the food sector, Albiani said.

“If it’s about the ingredients, then that’s what we should focus, and yes, there’s a way to do that here in California and do it in a scientifically based, appropriate way with the appropriate food scientists and then move that review into the schools,” Albiani said.