California law AB 899 imposes labeling, testing, and public disclosure requirements on manufacturers of baby food. “‘Baby food’ means food packaged in jars, pouches, tubs, and boxes represented or purported to be specifically for babies and young children less than two years of age…[and] does not include infant formula.” There are also obligations on retailers that go into effect January 1, 2025. Below we describe AB 899’s requirements, discuss its penalties, and provide risk-mitigation recommendations.
Requirements
Complying with these rules is essential for avoiding enforcement actions and penalties. Manufacturers and retailers should be aware of these requirements imposed by AB 899.
- Manufacturers of baby food were to begin testing their products for “toxic elements” (defined as arsenic, cadmium, lead, and mercury) as of January 1, 2024.
- Testing must be performed by an ISO/IEC accredited lab.
- As of January 1, 2025, manufacturers must start disclosing test results and modifying their product labels in accordance with the law. Manufacturers must:
- Make publicly available on the manufacturer’s website – for the duration of the product shelf-life for a final baby food product plus one month – the name and level of each toxic element present in each production aggregate of a final baby food product.
- Provide descriptive information on the website to enable accurate identification of the final baby food product by consumers. Descriptive information may include, but is not limited to, product name, UPC, size, lot numbers, or batch numbers.
- Follow additional label requirements for products tested for toxic elements subject to FDA limits.
- No party – including retailers – may sell, deliver, hold, or offer for sale any baby food that fails to comply with the law.
- This language will require retailers to stop offering any baby food that is not appropriately labeled under the new law.
- The law does not retroactively apply to products that have been manufactured and labeled prior to January 1, 2025; retailers are permitted to sell baby food products that are either on the shelves or in the supply chain and are not labeled in compliance with the new law so long as they were manufactured and labeled prior to January 1, 2025.
- Any product manufactured and labeled after January 1, 2025 will need to have compliant labels.
Most enforcement actions likely to be focused on manufacturers
Manufacturers of baby food have the most interest in knowing all the details about enforcement and penalties of the new regulations. While most enforcement will likely be against manufacturers, and retailers are less likely to be targeted for enforcement (unless the violation is in some way grossly negligent or willful), retailers also must be aware of responsibilities and risks.
Criminal penalties can include up to one year of imprisonment and/or a fine of up to $1,000, and civil penalties can include a fine of up to $1,000 per day of unlawful sales. The most likely penalty to be levied against retailers are the civil penalties of up to $1,000 per day. We expect local inspectors to visit retailers and to require removal of noncompliant products.
Market players face challenging to-do lists
Manufacturers and retailers should comply with the new rules on labeling, testing, and disclosure to satisfy the legal requirements and mitigate risk of government enforcement actions. Market players can undertake the following steps:
- Manufacturers should ensure compliance with the labeling, testing, and disclosure requirements immediately.
- Manufacturers and retailers should ensure that all covered products manufactured and labeled after January 1, 2025, have compliant labels.
- Retailers should ensure indemnity protections in manufacturer and supply agreements.
Please let us know if the lawyers at Reed Smith can answer any of your questions about manufacturer contracts or supply agreements, or if you would like us to conduct a label review of relevant products.
Client Alert 2024-248
