HOW PORK IS THE DEATH OF SKITTLES: THE DORMANT COMMERCE CLAUSE DESTROYS SKITTLES FOR AMERICA

Author: Nathan Thacker, Associate Editor

You probably have heard of the Commerce Clause in the U.S. Constitution.  This clause grants Congress the power to regulate interstate commerce.[1]  However, the inverse of the Commerce Clause is the Dormant Commerce Clause, as interpreted by the United State Supreme Court.  The Dormant Commerce Clause prohibits states from passing laws that discriminatorily affect or burden interstate commerce.  This part of the common law is used to prohibit states from enacting undue burdens on various products, such as cantaloupes.[2]   Recently, California instated a ban that has the potential for a dormant commerce clause argument.  This post argues that, while these bans are needed, Congress is the appropriate legislative body to enact these bans.

In 2023, the California State Assembly introduced Assembly Bill 418.[3]  This bill was enacted to prohibit five (5) widely used food additives, but the biggest name on the chopping block was titanium dioxide, a major additive in Skittles.[4]  Assembly Bill 418 was enacted as the California Food Safety Act on September 14, 2023.  Thankfully the legislature, in their good will, removed titanium dioxide from the language of the bill.[5]  However, the legislature left the four (4) following major food additives:[6] (1) Brominated Vegetable Oil (CAS no. 8016-94-2), (2) Potassium Bromate (CAS no. 7758-01-2), (3) Propylparaben (CAS no. 94-13-3), and (4) Red dye 3 (CAS no. 16423-68-0).  Brominated Vegetable Oil (“BVO”) is commonly found in citrus-flavored soda, citrus-flavored sports drinks, energy drinks, fruit flavored syrups, and baked goods.[7]   Potassium Bromate is most commonly found in bread.[8]  Propylparaben is usually found as a preservative in the sweet treats aisle for grocery stores.[9]  Red dye 3 is probably the most common ingredient you have encountered, as this dangerous ingredient is found in Peeps, Ding Dongs, and even Candy Corn.[10] 

The “Skittles Ban” by California became a hot topic, notably on Reddit and the Today Show.[11]  In following California, other states have introduced near identical language in their legislatures in a push to oust dangerous candy on a statewide level.  New York,[12] New Jersey,[13] Washington,[14] and Illinois[15] have all introduced these bills.  New York and New Jersey have titanium dioxide on their list, while Washington and Illinois have left the substance alone.

During the 2022 term, the Supreme Court of the United States heard arguments for National Pork Producers Council v. Ross.  In Ross, California sought to ban pork that was harvested from pigs bred in pens where the pigs could not lie down.[16]  This obvious anti-animal cruelty law was challenged on the basis that it violates the Dormant Commerce Clause of the constitution.[17]  The Dormant Commerce Clause is an interpretative reading of Art. I, Sec. 8, cl. 3 of the U.S. Constitution (the Commerce Clause).  Interpretations of the Dormant Commerce Clause suggest that states cannot discriminatorily interfere with interstate commerce by passing laws that prohibit outside companies from conducting business within another state.[18]  The arguments on appeal with the Court revolved around the effect that pork producers would experience by being banned from selling their pork in California.[19]  In finding that the law did not conflict with the Dormant Commerce Clause, the Court noted that such violation occurs when states seek economic protectionism and design regulatory measures to benefit in-state economic interests by burdening out-of-state competitors.[20] 

Sadly for the Pork Producers Council, the California Pork Ban remained.  Applying the Court’s point of view and doctrine to the Skittles Ban gives a bleak outlook for candy (especially Skittles in some states, but not others).  Likely any challenges to these anti-candy laws, so to speak, will fail based off the Court’s recent grappling with the Dormant Commerce Clause.  For companies like Mars,[21] new formulas for candy and sweet treats may have to be discovered to fall in line with new food policy banning these harmful ingredients.  Given the Court’s recent holding, claiming discrimination will not block these bans.

On June 7, 2023, the U.S. House of Representatives introduced a resolution labeled the Food Chemical Reassessment Act of 2023.[22]  The resolution directs the Secretary of Health and Human Services to establish an office that will review the safety of the ten (10) following substances: (1) Tert-butylhydroquinone; (2) Titanium dioxide; (3) Potassium bromate; (4) Perchlorate; (5) Butylated hydroxyanisole (BHA); (6) Butylated hydroxytoluene (BHT); (7) Brominated vegetable oil (BVO); (8) Propyl paraben; (9) Sodium nitrite; and, (10) Sulfuric acid.  Some of these substances are already under the state’s microscope.[23]  This resolution also did not make it into a committee hearing.  However, the introduction of this resolution speaks to a new direction: that Congress is seeking promote the health of America by reviewing these harmful food additives.  Thankfully, because of the Court’s holding in National Pork Producers v. Ross, states can introduce legislation that bans these substances without the cloud of discrimination to out of state businesses.  This leaves the door open for state action when Congress fails to take adequate precautions.  Rather than states unevenly banning harmful food additives, Congress has the chance to step in and make a sweeping ban on what we know to be harmful.

[1] U.S. Const. art I, sec 8, cl. 3.

[2] Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).

[3] A.B. 418, 2023-2024 Reg. Sess. (Cal. 2023)

[4] Danielle Smith, Current Versions of Skittles, PEZ and Other Popular Candies Could Be Pulled From Shelves Under New California Bill. Here's What to Know, NBC Los Angeles, Mar. 25, 2023, https://www.nbclosangeles.com/news/national-international/california-bill-skittles-ban/3122245/.

[5] UCLA Health, What you need to know about California’s “Skittles ban”, UCLA Health, Jan. 4, 2024, https://www.uclahealth.org/news/what-you-need-know-about-californias-skittles-ban.

[6] See A.B. 418, 2023-2024 Reg. Sess. (Cal. 2023).

[7] See Gloria Tsang, Banned Brominated Vegetable Oil in Popular Drinks and Soda (2023 Update), Health Castle, Nov. 5, 2023, https://www.healthcastle.com/banned-brominated-vegetable-oil-popular-drinks-and-soda/. See also Elisabeth Anderson & Joe Zagorski, Trending – Brominated Vegetable Oil (BVO), Michigan State University Center for Research on Ingredient Safety, Nov. 6, 2023. https://www.canr.msu.edu/news/trending-brominated-vegetable-oil-bvo

[8] See EWG, Potassium Brominate, Environmental Working Group, https://www.ewg.org/research/potassium-bromate (last visited, Jan. 14, 2024).  See also Elisabeth Anderson & Joe Zagorski, Trending – Potassium Bromate, Michigan State University Center for Research on Ingredient Safety, Feb. 27, 2023, https://www.canr.msu.edu/news/potassium-bromate#:~:text=Potassium%20bromate%20is%20an%20oxidizing,remains%20in%20the%20baked%20product.

[9] See EWG, Propyl Paraben, Environmental Working Group, https://www.ewg.org/research/propyl-paraben (last visited, Jan. 14, 2024). See also Elisabeth Anderson, Preservatives – Keeping our cosmetics safe & fresh, Michigan State University Center for Research on Ingredient Safety, May 13, 2019, https://www.canr.msu.edu/news/preservatives-cosmetics-safe-fresh.

[10] See Danielle Letenyei, Foods That Contain the Controversial Red Dye No. 3, Green Matters, Sep. 13, 2023, https://www.greenmatters.com/health-and-wellness/foods-with-red-dye-3.

[11] u/Lifeistrashwithoutu, Reddit, (Oct. 2023),  https://www.reddit.com/r/memes/comments/174psno/apparently_theyre_banning_cancercausing_food_like/.

[12] S.B. 6055, 246th Sess. (N.Y. 2023).

[13] A.B. 5436, 220th Leg., 2d Sess. (N.J. 2023).

[14] H.B. 1921, 68th Leg., (Wash., 2023).

[15] S.B. 2637, 103rd Gen. Assemb., 1st Reg. Sess. (Ill. 2023).

[16] Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023).

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Mars, Inc., is the company that owns and produces the Skittles brand. See https://www.mars.com/.

[22] H.R. 3927, 118th Cong. (2023).

[23] Id.