The Permission That Protects Nothing
On February 5, 2026, the FDA announced that food manufacturers can now label products "no artificial colors" if they avoid petroleum-based dyes, even when those products contain naturally derived colorants like beetroot red or spirulina extract. The shift marks a major departure from the agency's previous standard, which only allowed such claims on products with zero added colors of any kind. But the announcement came with a caveat that undermines its entire premise: this "enforcement discretion" doesn't change federal regulations, doesn't bind state lawmakers, and offers no shield against private lawsuits.
Health and Human Services Secretary Robert F. Kennedy Jr. framed the move as advancing the "Make America Healthy Again" initiative. Yet the FDA created a regulatory gap where "no artificial colors" means one thing to federal inspectors, something potentially different to state legislators in Texas and Louisiana, and something else entirely to judges hearing consumer fraud cases.
How Enforcement Discretion Works
The FDA's new policy operates under Section 403(a)(1) of the Federal Food, Drug, and Cosmetic Act, which governs misbranding. Instead of rewriting the color additive regulations in 21 CFR Part 74, the agency announced it would exercise "enforcement discretion", a prosecutorial choice not to pursue violations for specific claims.
This matters because enforcement discretion is fundamentally different from regulatory change. When the FDA revises regulations, those rules carry the force of law and typically preempt conflicting state requirements. Enforcement discretion is an internal agency decision about how to allocate resources. It creates permission without protection.
FDA Commissioner Marty Makary stated that calling naturally derived colors "artificial" might be confusing for consumers. The agency's solution was to let manufacturers use naturally derived colors and claim their products contain no artificial colors, as long as those products don't contain the petroleum-based synthetic dyes listed in Part 74.
Deputy Commissioner Kyle Diamantas stated the FDA is working to facilitate industry's phase-out of petroleum-based colors. The agency approved beetroot red as a new color additive the same day it announced the policy shift, and expanded approved uses for spirulina extract. Six new food color options have been approved under the current administration.
But facilitating industry cooperation is different from establishing legal standards. The FDA's announcement explicitly states the policy "applies only to FDA enforcement decisions, not to state regulation or private litigation."
Three Regulators, Three Definitions
Food manufacturers now operate in a system where three different authorities can evaluate the same "no artificial colors" claim using different standards.
At the federal level, the FDA is tracking industry pledges to remove petroleum-based food dyes publicly. The agency plans to eliminate six major synthetic dyes, FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, and FD&C Blue No. 2, by the end of 2026. The administration already initiated the process to revoke authorization for Citrus Red No. 2 and Orange B. Companies that reformulate with plant-based alternatives and print "no artificial colors" on their packaging will face no federal enforcement action.
At the state level, Texas, Louisiana, and West Virginia have enacted or are considering laws on food dyes. These states are writing their own definitions and standards, potentially creating a patchwork where a label compliant in one jurisdiction violates law in another. The FDA's enforcement discretion doesn't prevent states from defining "artificial colors" differently or prosecuting violations under state consumer protection statutes.
In courtrooms, over 20 lawsuits have been filed in the last five years related to misleading labeling of food colors. Plaintiffs' firms have increasingly targeted "purity" and "natural" claims in food litigation. Some courts have allowed misleading labeling claims to proceed where reasonable consumers could be misled, a standard that depends on how judges and juries interpret consumer expectations, not FDA guidance.
A manufacturer who reformulates a strawberry yogurt with beetroot red instead of FD&C Red No. 40 could print "no artificial colors" and satisfy federal regulators. That same label could trigger a violation notice in a state that defines all added colorants as artificial. And it could become evidence in a class action lawsuit where plaintiffs argue consumers expected "no artificial colors" to mean no added colors at all.
The Political Architecture of Chaos
Why would the FDA create a policy that explicitly doesn't protect the companies it's designed to help?
The answer lies in the difference between political messaging and legal architecture. Announcing enforcement discretion lets the administration claim progress on removing synthetic dyes from food without doing the regulatory work required to establish binding standards. Changing Part 74 would require notice-and-comment rulemaking, scientific justification for distinguishing petroleum-based from naturally derived colors, and legal analysis of whether such distinctions survive challenge. That process takes years.
Enforcement discretion takes a press release.
The FDA issued a letter highlighting resources to assist manufacturers in maintaining safety and purity standards for authorized color additives. But resources don't resolve the fundamental problem: federal permission that state regulators and courts can ignore creates compliance chaos, not clarity.
The Impossible Task
Small manufacturers face the sharpest edge of this fragmentation. A regional bakery that switches from synthetic blue dye to spirulina extract must now evaluate three separate risk profiles: Will the FDA enforce against this label? Could our state legislature pass a law that contradicts federal guidance? Will a plaintiffs' firm file a class action arguing our customers were misled?
The economics of food labeling litigation make this more than theoretical. Consumer protection statutes in many states include attorney fee provisions, meaning plaintiffs' lawyers can profit from settlements even when individual consumers recover little. The barrier to establishing standing is low, buying a product and claiming the label was misleading is often enough. A company that relies on FDA enforcement discretion as a defense could spend hundreds of thousands of dollars in legal fees before a judge decides whether that guidance matters.
Large manufacturers with legal departments can navigate this complexity. They can print different labels for different states, maintain detailed records of their reformulation decisions, and budget for litigation risk. Small producers reformulating to meet the administration's voluntary phase-out timeline may not realize they're exposed until a lawsuit arrives.
What Regulatory Fracture Looks Like
The FDA's policy reveals what happens when political health initiatives prioritize speed over legal durability. By choosing enforcement discretion over regulatory change, the agency created a permission structure without legal foundation. Federal guidance that explicitly doesn't bind other authorities isn't guidance, it's a suggestion that manufacturers follow at their own risk.
The agency is asking food companies to remove FD&C Red No. 3 ahead of the previously required 2027-2028 deadline. Companies that comply face the same three-front problem: federal approval, state uncertainty, and litigation exposure. The faster manufacturers move to meet political timelines, the more they operate in regulatory no-man's-land.
This isn't just about food dyes. The pattern, announce a health policy initiative, use enforcement discretion to claim progress, leave industry exposed to state and private enforcement, could apply to any ingredient or claim the administration targets. Enforcement discretion becomes a tool for political messaging that transfers legal risk from the federal government to manufacturers, state regulators, and courts.
A manufacturer reformulating products today faces a question the FDA's policy doesn't answer: What does compliance mean when three different authorities define it differently?