The Harvard Law School Food Law and Policy Clinic released a report on August 25, 2026 taking the first comprehensive look at the preemption clause inside the draft FRESH Act. Margaret Lynn and Emily Broad Leib conclude that a provision superseding any and all State requirements or prohibitions relating to the use, labeling, sale, or marketing of food would displace state additive bans, allergen and menu disclosures, heavy metal limits, PFAS rules for packaging, retail and restaurant inspection, cottage food laws, and state manufacturing licensure, in most of those areas with no federal rule required to take their place. They are right. The reach is worse than the headline suggests, and the record of who asked for this language is a matter of public filing.
The clause preempts whether or not a federal rule exists to replace it.
Congress has preempted state food law before, and it has done so with a scalpel. The Nutrition Labeling and Education Act of 1990 lists the specific categories of state labeling requirements it displaces, and a state law falls only if it is of the type covered by a federal requirement named in the statute. That structure exists for a reason. It means preemption arrives with a federal rule attached, and nothing drops into a hole.
The FRESH Act carries no such limit. As the Harvard report reads it, the draft supersedes state requirements across the board without conditioning that on the existence of any corresponding federal standard. Where a federal rule exists, the state rule yields to it. Where no federal rule exists, the state rule yields to nothing at all. That is not uniformity. That is subtraction.
The phrase added or naturally occurring substance in food reaches pathogens, not just dyes.
Nearly all of the public argument about this bill has been about food chemicals: dyes, PFAS, the GRAS loophole. That is where the fight started, and it is where the coalition backing the bill would prefer the fight to stay. CSPI and EWG both came out against the draft on those grounds within days, and both were right to. But the draft does not stop at intentionally added ingredients. It also sweeps in any substance that may be expected to become a component of food, and any added or naturally occurring substance in food.
Read that as a lawyer reads it. The Harvard report points to United States v. Anderson Seafoods, which litigated whether mercury in swordfish was added or naturally occurring, and to Continental Seafoods v. Schweiker, which litigated the same question about Salmonella in shrimp. Courts have been construing that phrase for more than forty years, and they have construed it to reach microbiological contamination. Which means a state limit on Listeria in ready-to-eat food, a state testing requirement, a state action level for a pathogen in a product sold inside its own borders, all of it sits in the preempted zone as drafted. Nobody at the April 29 hearing described the bill that way. That is what the words say.
The FDA does not inspect restaurants, and the three thousand agencies that do would be preempted.
By the FDA’s own account, more than 3,000 state, local, and tribal agencies hold primary responsibility for regulating food service and retail food in this country. The agency publishes a model Food Code, but the Food Code has no force anywhere until a state adopts it, and the FDA has no direct authority over a grocery store or a diner. That division is not an accident of history. It is the architecture.
Preempt state requirements relating to the sale of food and you have preempted state food codes, state permitting, and state inspection, with no federal inspector standing behind them and no federal appropriation to hire one. The bill does not give the FDA that authority, does not fund it, and could not compel the states to keep doing the work for free, because the federal government cannot commandeer a state into administering a federal program. I have spent thirty years reading health department inspection reports in outbreak cases. Those documents exist because a local sanitarian walked into a kitchen under state law. Take away the state law and the sanitarian has no reason to be standing there.
Any and all State requirements is the phrase that has ended tort claims before.
Here is the part that lands closest to what I do. The Federal Food, Drug, and Cosmetic Act creates no private right of action. A person injured by contaminated or misbranded food recovers, if at all, under state law: negligence, strict products liability, breach of the implied warranty of merchantability, state consumer protection statutes. Every one of those is a state requirement.
The Supreme Court held in Riegel v. Medtronic that New York common law duties count as requirements within the meaning of a federal preemption clause and preempted them. It reached a comparable result under ERISA in Pilot Life v. Dedeaux. Whether the FRESH Act clause would be read that way is not certain, and I will not pretend it is. But the phrase any and all State requirements or prohibitions is broader than the language that did the work in Riegel, and a defense lawyer would be committing malpractice not to raise it. If it works, the family of a child with hemolytic uremic syndrome is left with a federal statute that contains no remedy and a state remedy that Congress erased. That is not a technical consequence. That is the consequence.
The coalition that wanted this published its specification a year before the bill appeared.
Representative Kat Cammack of Florida, who sits on both Energy and Commerce and Agriculture, released the discussion draft on April 22, 2026 and presented it at the Energy and Commerce Health Subcommittee hearing on April 29, where it was one of twenty-eight food bills on the agenda. Her stated case is a patchwork argument: differing state requirements create real costs for manufacturers, for retailers, and ultimately for families.
I am not interested in guessing at a member’s motives, and I would not print a guess if I had one. I am interested in the paper trail, and the paper trail here is not hard to follow.
In October 2025, six months before the draft appeared, a group called Americans for Ingredient Transparency launched. Its website states the ask in a single sentence: the Federal Food, Drug, and Cosmetic Act should be amended to establish the FDA as the sole entity setting the floor and the ceiling for regulations on the marketing and sale of foods and beverages, including safety assessments, ingredient approvals, registrations, reporting requirements, and labeling requirements. Read the two nouns again. Floor and ceiling. A floor is a minimum that states may exceed, and that is what federal food law has been since 1906. A ceiling is a maximum, and it means a state may not do more to protect its own residents than Washington has gotten around to doing. The group asked for both. The FRESH Act delivers both. There is no mystery about the drafting influence, because the customer published the specification.
The group’s own partner page names the backers: the Coca-Cola Company, PepsiCo, Nestlé USA, Kraft Heinz, General Mills, Conagra, Tyson Foods, Hormel, McCormick, Mondelez, Ferrero, Keurig Dr Pepper, Ocean Spray, Sargento, Sysco and Ken’s Foods, alongside the Consumer Brands Association, FMI, the National Restaurant Association, the National Retail Federation, the Meat Institute, the American Bakers Association, American Beverage, the Corn Refiners Association, the American Farm Bureau Federation and a dozen more. Its two senior advisors are Julie Gunlock, who directs the Independent Women’s Network and wrote a book arguing that alarm about food chemicals is itself the problem, and Andy Koenig, a founding partner of Kwinn Consulting who served as a special assistant to President Trump in the Office of Legislative Affairs and was previously vice president of policy at the Freedom Partners Chamber of Commerce. The footer of the site reads, paid for by Americans for Ingredient Transparency. Whatever else that is, it is not a consumer group.
One member company disclosed lobbying on state additive bans three months before the coalition existed.
Conagra Brands filed a lobbying report for the second quarter of 2025, signed by Megan Garcia on July 21, 2025, listing under its food issue area: issues related to FDA’s Generally Recognized as Safe regulations, and issues related to state food additive bans and labeling laws. Two in-house lobbyists are named on the page. That filing predates the launch of Americans for Ingredient Transparency by three months and the FRESH Act draft by nine.
I have made the point before that the useful move is to stop arguing about intent and go read the disclosures. When the Guardian did exactly that on the Food Traceability Rule, the filings named the organizations that had asked Congress to push compliance to 2028, in their own words, on their own forms. The same method works here, and it will keep working, because the law requires these people to write down what they are lobbying for.
This is the same play, run twice, eighteen months apart.
In 2024 and 2025, industry asked Congress to delay the traceability rule and then to defund its enforcement, and Congress obliged through the appropriations process. In 2026, industry is asking Congress to erase the authority of every state to regulate food inside its own borders. The delay argument was that one rule was too hard to comply with. The preemption argument is that fifty standards are too many to comply with. Both arguments end in the same place, which is fewer obligations and less traceable accountability, and both were made by many of the same trade associations.
I will grant industry its strongest point, because it is a real one. A different warning label statute in every state, each with its own list and its own threshold, is a bad way to run a national food supply, and a manufacturer cannot print a different box for every state line. Uniformity has value. The Association of Food and Drug Officials made the right observation at the April hearing, which is that preemption should be applied carefully and deliberately, so that it strengthens rather than strains the federal and state partnership. Careful and deliberate describes the NLEA. It does not describe this draft.
A federal floor is worth building. A federal ceiling is not.
The states did not wander into food chemical regulation out of boredom. They moved because the FDA did not. California banned ephedra before the FDA acted. New York City and California banned trans fats years before the federal ban. California acted on four additives in 2023, West Virginia acted on dyes, and more than thirty states introduced legislation of that kind in 2025 alone. The FDA’s own mandatory GRAS proposal, published this month, still does not require premarket approval and would not bind anyone until roughly 2029. I represented 339 of the people sickened by the Daily Harvest crumbles, and the ingredient in that product was never reviewed by anybody before it was sold. State legislatures noticed. That is what a laboratory of democracy looks like when the laboratory upstairs has the lights off.
The FRESH Act is still a discussion draft. It has no bill number, it has not been marked up, and there is time to fix the clause without abandoning the parts of the bill worth keeping. Take the preemption provision out or narrow it the way the 1990 Congress narrowed its own, and the GRAS registry and the post-market review program can be argued on their merits. Leave it in and Congress will have voted to take away nearly every tool the states have, replace almost none of them, and close the courthouse door on the way out.
Read the report. It is footnoted to the statutes and the cases, and it is the most careful thing written about this bill so far.
