Over the past few decades, the Food and Drug Administration's (FDA's) regulation of food additives has provoked debate. In general, food additives, which include substances such as spices, emulsifiers, and preservatives, are added to foods to improve taste, texture, or shelf life, or for other reasons. While the Federal Food Drug & Cosmetic Act (FD&C Act) generally requires manufacturers to obtain premarket approval from FDA for food additives, manufacturers are not required to use the premarket approval process for certain substances that are generally recognized as safe (GRAS), as set out in the statute. Pursuant to existing law, GRAS substances are not considered food additives and are exempt from FDA's premarket review. Current FDA regulations permit a manufacturer to market products with substances the manufacturer concludes are GRAS, with the option to submit a voluntary notice to FDA stating it believes a substance is not subject to premarket approval accompanied by support for that belief. Food safety groups and commentators have criticized FDA's treatment of GRAS substances, arguing that it allows the food industry to "bypass crucial safety checks for new ingredients" and to "regulate itself." Others are skeptical that FDA has sufficient resources to take on the review of GRAS assessments and have expressed that requiring FDA to review GRAS determinations may hamper industry innovation and "may cause disruptions in our food supply."
On August 11, 2026, FDA issued a proposed rule that would require manufacturers to submit notices to FDA for conclusions that a substance is GRAS, a process that is currently voluntary. FDA states that the proposed rule does "not establish a premarket review program for purportedly GRAS substances." Rather, the mandatory submissions would assist FDA in "fulfilling [its] statutory responsibility" to determine whether a substance is an unapproved food additive. This Legal Sidebar begins with an overview of the legal framework for regulating food additives and GRAS substances. It next discusses the 2016 final rule that created a process for the voluntary submission of GRAS notices and the legal challenge to that rule. The Sidebar then provides an overview of the August 2026 proposed rule and concludes with selected legal considerations for Congress.
To further FDA's mission to ensure foods are "safe, wholesome, sanitary, and properly labeled," the FD&C Act prohibits the introduction of adulterated or misbranded foods in interstate commerce. One way that a food is considered to be adulterated is if it contains an "unsafe" food additive, and a food additive is deemed unsafe unless FDA has promulgated a regulation approving the use of that additive upon a showing that the additive poses reasonable certainty of no harm under the conditions of its intended use.
The FD&C Act defines food additive as "any substance the intended use of which results or may be reasonably expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food" unless the substance is GRAS. A substance is GRAS—and therefore not a food additive—if "experts qualified by scientific training and experience to evaluate its safety" generally recognize the intended use of the substance to be safe. According to the statutory definition, these experts must base their view of a general recognition of safety on either (1) scientific procedures or (2) common use of a substance in food prior to January 1, 1958.
The first type of GRAS substances are ones that have "been adequately shown through scientific procedures . . . to be safe under the conditions of [their] intended use." A GRAS conclusion based on scientific procedures "require[s] the same quantity and quality of scientific evidence as is required to obtain approval of a food additive regulation for the ingredient." The GRAS conclusion is "ordinarily" based on published studies, but it can be corroborated by unpublished studies and other information. Courts have noted that a GRAS conclusion does not require the "unanimous recognition" of qualified experts but instead their "general recognition." The second type of GRAS substances are those that were "used in food prior to January 1, 1958" and shown through "experience based on common use in food[ ] to be safe under the conditions of [their] intended use." FDA regulations provide that general recognition of safety through experience "shall be based solely on food use of the substance prior to January 1, 1958, and shall ordinarily be based upon generally available data and information."
Even though FDA does not preapprove substances as GRAS, FDA engages in post-market review of purportedly GRAS substances used in foods on the market to ensure that the substances are indeed GRAS and not unapproved food additives. For example, FDA has sent untitled letters to manufacturers of certain caffeinated beverages requesting the support for their conclusion that their use of caffeine in alcoholic beverages is GRAS. Subsequently, FDA sent warning letters disagreeing with the manufacturers explaining that the use of caffeine in alcoholic malt beverages is not GRAS, but rather an unsafe food additive, and threatening to seize the products unless the manufacturers discontinued making the products. Additionally, FDA reassesses uses that FDA previously agreed were GRAS if new, relevant data become available.
In 2016, FDA finalized a rule that amended its regulations to create a voluntary notification procedure for industry to notify FDA of its GRAS determinations (2016 GRAS final rule). Under the GRAS notification procedure, any person may submit a GRAS notice to FDA that states their view that a use of a particular substance is GRAS under the conditions of its intended use and therefore not subject to the premarket approval requirements applicable to food additives. FDA is to respond via letter within 180 days of filing, and it may extend the time frame by 90 days when it needs to do so. A submitter may also ask FDA to cease evaluation of a GRAS notice, and FDA is to respond via letter with its decision regarding the request to cease its evaluation of the notice.
In the Federal Register notice announcing the 2016 GRAS final rule, FDA commented on whether it had the authority to require the submission of GRAS notices, rather than relying on voluntary notifications. As part of the preamble to this rule, FDA addressed certain comments asking FDA to require (rather than permit) food companies to provide FDA with basic information about the determination of GRAS status, out of concern that "dangerous substances could enter the food supply without [FDA's] knowledge or supervision." As a part of its response to these concerns, FDA stated that it "lack[s] express statutory authority to require companies to submit GRAS notices." The agency pointed to Congress's decision to exclude GRAS substances from the definition of food additive, which "reflected Congress's determination that many substances intentionally added to food for specific use do not need premarket review by FDA to ensure their safety, either because their safety has been established by a long history of use in food, or because their safety has been established by information that is generally available and accepted by qualified experts." In response to comments asserting that FDA has implied legal authority to require GRAS notices, FDA stated it would consider these comments and other experience in examining any further action to ensure the safety of the food supply.
Following FDA's issuance of the 2016 GRAS final rule, two nonprofit organizations—the Center for Food Safety and the Environmental Defense Fund—filed a legal challenge to the rule in the U.S. District Court for the Southern District of New York. The organizations argued, in part, that the rule exceeded FDA's statutory authority under the FD&C Act because the rule failed to ensure foods are safe as required by the statute. They asked the court to vacate the rule, noting concerns about food safety and FDA's lack of knowledge about the substances in the food supply.
In considering whether FDA had exceeded its statutory authority, the court applied the now-overturned Chevron doctrine, which required courts to determine whether the statute was "silent or ambiguous" with respect to the contested issue, and if so, defer to the agency's interpretation of the statute if the interpretation was reasonable. The court was therefore tasked with determining whether FDA's interpretation that the FD&C Act does not require the submission of GRAS notices was reasonable. FDA asserted that it "lack[ed] express statutory authority to require companies to submit GRAS notices." FDA noted it might have implied authority to make GRAS notifications mandatory, but it argued that, even if it did, the decision to use a voluntary system was reasonable because the food industry submitted many GRAS notices voluntarily and because reviewing mandatory submissions would deplete its resources that could be better directed toward evaluating "higher priority, substances."
The court concluded that FDA's interpretation was reasonable because GRAS substances were specifically exempted from the premarket review framework for food additives and because FDA has limited resources to allocate to food safety. The court reasoned that FDA has a "long-standing record" of interpreting the FD&C Act to exempt GRAS substances from premarket review, as the systems in place before the 2016 Final Rule were also voluntary. The opinion further noted that Congress "has remained silent for more than sixty years on whether GRAS submissions should be voluntary" despite FDA's long-standing interpretation of the FD&C Act.
The organizations raised, and the court rejected, several other arguments—that the GRAS rule unlawfully subdelegates FDA's duty to ensure food safety to food companies, that the rule is arbitrary and capricious, and that the rule violates the FD&C Act. The court rejected each of these arguments, noting that FDA has "numerous cogent explanations" for the rule and that many of plaintiffs' arguments are "essentially reiterations of the issues the plaintiffs flagged in their other challenges." The court therefore granted FDA's motion for summary judgment, ending the legal challenge to the 2016 GRAS final rule. The plaintiffs opted not to appeal this decision.
On August 11, 2026, FDA issued a proposed rule that, if finalized, would require any person introducing a GRAS substance into interstate commerce to submit a notice explaining the basis for their conclusion that the substance is GRAS for its intended use, unless an exception applies. The proposed rule applies to all GRAS substances, including new substances and GRAS substances already used in food. FDA expressed its view that the rule does not establish a premarket approval framework for GRAS substances, as companies would be able to market products containing GRAS substances before submitting the notice and while FDA is reviewing the notice. Rather, the agency indicated that the proposed rule would help FDA fulfill its "statutory responsibility to determine if the use of a substance constitutes a food additive use that is subject to the premarket review and approval requirements of section 409 of the FD&C Act."
In the proposed rule, FDA explained that requiring mandatory GRAS notices is needed for several reasons. First, the proposed rule would ensure that companies are conducting sufficient safety analysis to prevent the use of unapproved food additives. Second, because the 2016 GRAS rule allowed notifiers to request that FDA cease to evaluate a GRAS notice, companies may begin marketing products with substances even after FDA raises concerns about the substance and without notifying the FDA or addressing FDA's concerns. Third, insufficient information about substances with purported GRAS uses impedes FDA's ability to prohibit the use of unsafe food additives in food and protect public health.
The proposed rule generally specifies that upon receipt, FDA would evaluate a notice and determine within 45 days whether the submission is adequate to file as a GRAS notice. Within 180 days of filing as a GRAS notice, FDA would respond to the notice with either a no questions letter, explaining that FDA has no questions regarding the notifier's conclusion that the substance is GRAS, or an insufficient basis letter, indicating that the notice does not provide a sufficient basis for a GRAS conclusion. The proposed rule would allow FDA to extend this evaluation period twice, with each extension limited to 90 days.
The proposed rule sets out a time-limited streamlined process for the submission of GRAS notices for substances that are already used in interstate commerce. Under the proposed rule, these streamlined submissions would be intended to be less burdensome than a nonstreamlined GRAS notice and can generally be submitted any time before the effective date of the final rule. If finalized, once the final rule goes into effect, food companies would no longer be able to submit streamlined GRAS notices. The proposed rule also sets out several exceptions when a company would not be required to submit a GRAS notice, including when the substance's use is the subject of a no questions letter that was sent in response to an existing notice (including to GRAS notices submitted by another manufacturer) and when FDA has issued a regulation affirming a substance as GRAS.
The preamble to the proposed regulations indicates that FDA would consider the failure to submit a GRAS notice as "a factor" in FDA's prioritization of food substances for post-market review, and therefore marketed substances that are not the subject of a GRAS notice may face increased scrutiny from FDA. FDA may initiate post-market review of a substance that is purported to be GRAS in response to requests from stakeholders or on its own initiative. FDA may conclude that a purportedly GRAS substance is not GRAS but instead an unapproved food additive, which would deem foods containing such a substance to be adulterated. The comment period on the proposed rule closes on December 9, 2026.
On August 11, 2026, FDA issued its proposed rule requiring the submission of GRAS notices. FDA has expressed its view that the proposed rule would not be requiring premarket review of GRAS substances and is intended to assist FDA in "fulfilling [its] statutory responsibility" to determine whether a substance is an unapproved food additive.
Should any forthcoming final rule be subject to litigation, the Center for Food Safety v. Becerra opinion may be instructive, but it would not bind a future court. First, the opinion is not published and therefore of no precedential weight. Second, even if it had been published, it is a district court opinion, which is generally not binding on other courts. Third, the opinion does not squarely address whether FDA is authorized to require the submission of GRAS notices. Instead, it holds that FDA's interpretation that the FD&C Act does not require FDA to mandate GRAS submissions is reasonable under Chevron. Fourth, because the Supreme Court overruled Chevron in its decision in Loper Bright in 2024, a court would analyze a future legal challenge to any forthcoming final rule differently than the court's analysis in the Becerra case.
FDA's previous interpretations of its authority to require GRAS notices under the FD&C Act may be relevant to future litigation. Following the overturning of Chevron, courts apply the canons of statutory construction to find a statute's best reading, rather than defer to an agency's reasonable interpretations of ambiguous statutes. The Supreme Court's opinion in Loper Bright suggested that courts may look to Skidmore to guide their consideration of statutes. Skidmore is a 1944 Supreme Court case that does not require courts to defer to agencies but permits courts to give weight or respect to agency interpretations that it considers persuasive. One factor courts may consider in determining persuasiveness is an agency's "earlier and later pronouncements," and it may afford less weight to an agency's interpretation if it considers it to be inconsistent with its earlier pronouncements.
Members of the 119th Congress have introduced legislation that, if enacted, would impact the process through which food companies may obtain GRAS designations: the GRAS Oversight and Transparency Act (H.R. 7291), the Better Food Disclosure Act of 2025 (S. 3122), the Grocery Reform and Safety Act (H.R. 4958), and the Ensuring Safe and Toxic-Free Foods Act of 2025 (S. 2341). Congress may consider these bills or other legislation that would affect the way food substances are determined to be GRAS or otherwise modify FDA's review of food safety. Congress may also consider clarifying through legislation FDA's authority (or lack of authority) to promulgate regulations requiring the submission of GRAS notices. Congress may also take no action and allow FDA to promulgate a final rule, if FDA chooses to do so, and allow courts to determine the scope of FDA's authority in any legal challenges.