Delaware General Assembly

Senate Health & Social Services 1/28/25

Awaiting consideration in Committee

SB 41

1/28/25

Buckson

Reps. Michael Smith, Hilovsky

Sen. Lawson
Reps. K. Johnson, Morrison, Ross Levin, Shupe, Kamela Smith, Wilson-Anton

AN ACT TO AMEND TITLE 16 OF THE DELAWARE CODE RELATING TO PURE FOOD AND DRUGS.

This Act is a substitute for Senate Bill No. 41. Both this Act and SB 41 ban the manufacture, sale, delivery, distribution, holding with the intent to sell, and offering for sale in Delaware of food that contains Red dye 3 (CAS no. 16423-68-0). After the release of SB 41, the Food and Drug Administration (FDA) revoked the authorization to use Red dye 3 in food and ingested drugs under the Delaney Clause of the federal Food, Drug, and Cosmetic Act. The Delaney Clause prohibits FDA authorization of a food or color additive if it has been found to induce cancer in humans or animals. This substitute retains the prohibition against Red dye 3 in food products to ensure it will remain banned in the State of Delaware. This Act differs from SB 41 by: (1) Adding and defining the term “color additive”. (2) Banning the manufacture, sale, delivery, distribution, holding with the intent to sell, and offering for sale in Delaware of food that contains the color additive, Red dye 40 (CAS no. 25956-17-6). Red dye 40 is a synthetic food coloring derived from petroleum. It is found in food products such as cereal, beverages, gelatins, puddings, popsicles, chips, dairy products, and confections. As with Red dye 3, Red dye 40 is used solely to enhance the appearance of food and does not provide any nutritional value. Consumption of Red dye 40 has been associated with hyperactivity, aggression, and other neurobehavioral problems in some children. Red dye 40 may also be linked with migraines and learning difficulties. The European Union requires a warning label to be placed on food products with Red dye 40, stating that it “may have an adverse effect on activity and attention in children”. In addition to banning Red dye 3, California became the first state to prohibit the provision of and sale of foods in schools that contain Red dye 40. Presently, 9 other states have introduced legislation to ban, limit, or require warning labels on food products containing Red dye 40. (3) Changing the effective date of this Act to January 15, 2027, to align with the date by which Red dye 3 must be removed from foods under federal law. The penalty provisions remain the same in this substitute; any person that violates this Act is subject to a civil penalty as follows: (1) For a first occurrence, not to exceed $5,000, in addition to costs. (2) For a subsequent occurrence, not to exceed $10,000, in addition to costs. Each day on which a violation of this Act occurs constitutes a separate occurrence.

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Takes effect upon being signed into law

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