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On October 8, 2025, Governor Gavin Newson signed into law
Assembly Bill 1264, the Real Food, Healthy Kids Act, as an
attempt to phase out the most “concerning”
ultra-processed foods from school meals in California. The bill,
among other things, will require the Office of Environmental Health
Hazard Assessment in conjunction with the Department of Public
Health to adopt regulations by June 1, 2028 and prohibit a vendor
from offering “ultraprocessed foods of concern and restricted
school foods to a school” beginning July 1, 2032.

Of particular significance is the bill’s codification of the
first legal definition for ultra-processed foods (“UPFs”)
in the United States. The definition is functional, focusing on the
types of substances present in the product and the roles they play
in production, rather than enumerating a static list of banned
additives. This marks a departure from existing state efforts to
define UPFs and could have notable impacts on how the term is
argued in false advertising and consumer protection litigation.

California’s Definition of Ultra-Processed Food

Now codified as Section 104661 of the California Health &
Safety Code, the statute defines UPF as any food or beverage that
contains:


Surface-active agents; stabilizers and thickeners; propellants,
aerating agents, and gases; colors and coloring adjuncts;
emulsifiers and emulsifier salts; flavoring agents and adjuvants;
or flavor enhancers, excluding spices and other natural seasonings
and flavorings; and either:

High amounts of saturated fat, sodium, or added sugar,
or a nonnutritive sweetener or other
substance.

Prior to AB 1264, the term UPF had no legal definition in any
U.S. jurisdiction. The term appeared in nutrition research and
advocacy campaigns, such as via the NOVA classification system
proposed by researchers in Brazil, but remained scientifically and
contextually fluid. This lack of definitional uniformity has
resulted in legal uncertainty in cases alleging harms caused by
UPFs, as courts had no statutory touchstone for the term.

Martinez v. Kraft Heinz Co., No. 25-377 (E.D. Pa., Aug.
25, 2025) is illustrative. In Martinez, the plaintiff
attempted to bring a nationwide class action against multiple major
food companies, alleging they marketed and sold
“addictive” and harmful ultra-processed foods to
children, resulting in serious health conditions. The plaintiff
claimed his development of type 2 diabetes and non-alcoholic fatty
liver disease was a direct result of consuming these products. The
complaint leaned heavily on public-health research linking UPFs to
chronic disease, and invoked the “Big Tobacco” analogy to
argue that defendant had engaged in predatory marketing.

Judge Mia Perez dismissed the complaint, calling the
plaintiff’s factual allegations “woefully deficient.”
Beyond failing to identify which products he consumed out of the
more than 100 brands sold by defendants or when or how often he ate
them, the plaintiff failed to establish that consumption of UPFs
produced by the named manufacturer led to his diagnosis. Moreover,
the lack of a formal definition of UPFs contributed to the
vagueness of the plaintiff’s claims.

The National Patchwork

Aside from California, other states have passed or considered
bills aimed at removing certain processed ingredients from school
food, but none have adopted a broad, functional definition of UPFs.
Most rely on lists of specific prohibited additives.


Arizona (HB 2164) –
Effective 2026-2027, prohibits schools from distributing, selling
or otherwise offering UPFs, defined as a food or beverage that
contains one or more of the “standard 11” additives:
Potassium Bromate, Propylpareben, Titanium Dioxide, Brominated
Vegetable Oil (BVO), Yellow Dye 5, Yellow Dye 6, Blue Dye 1, Blue
Dye 2, Green Dye 3, Red Dye 3, and Red Dye 40.

Alabama (HB
580), Florida (SB
1826), Kentucky (HB
439), Missouri (SB
802), New Jersey (S
4560), North Carolina (HB
874), and South Carolina (HB 4339 and
SB 589) all
introduced nearly identical additive-list bills modeled on
Arizona’s language.

Texas (SB 25) – Expands
the Arizona additive list to include any additive that is
substantially similar to the “standard 11.”

Louisiana (SB 14) –
Defines “prohibited ingredient” as any food or beverage
that contains Blue dye 1, Blue dye 2, Green dye 3, Red dye 3, Red
dye 40, Yellow dye 5, Yellow dye 6, azodicarbonamide, Butylated
hydroxyanisole (BHA), Butylated hydroxytoluene (BHT), Potassium
bromate, propylparaben, and titanium dioxide.

Due to the varying definitions of UPFs in state legislation,
federal agencies are now seeking to establish a uniform definition
of UPFs. Recently, the U.S. Food and Drug Administration and the
U.S. Department of Agriculture issued a Request for Information to formally define
UPFs. The time period for submitting comments was extended until
October 23, 2025.

That said, the broader regulatory picture remains cloudy. The
FDA’s decades-long refusal to adopt a formal definition of
“natural”, for example, despite persistent public
pressure suggests it is unlikely we will see a uniform federal
definition of UPFs in the near term. Further, if history tells us
anything, even California’s definition will be subject to
interpretation and will no doubt lead to litigation and further
refinement over time.

Key Takeaway

The defining feature of AB 1264 is not just its impact on
California’s school lunchrooms, but its legal definition of
UPFs. For now, its reach is narrow. Moreover, the bill does not
take effect until June 1, 2028, when regulations must be adopted.
How or whether California’s definition will reverberate in
other jurisdictions remains unclear. Manufacturers are best served
by staying informed, watching for signs of wider adoption or
divergence, and positioning themselves to adapt quickly to whatever
standard ultimately takes hold.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.