Florida’s announcement this week that it found “problematic” levels of arsenic in dozens of popular candies likely will not lead to recalls or enforcement, but the threats to manufacturers – including those beyond the confection category – nonetheless are real and multifaced.
According to the National Confectioners Association the announcement “will result in confusion among consumers, regulators and lawmakers.”
Fallout could range from reputational damage to the brands called out for elevated arsenic levels to increased consumer confusion about the safety of the US food supply more broadly. It also could include operational challenges related to sourcing or potential reformulation, which in turn could trigger a race for certifications intended to reassure consumers about product safety, if not confidence in the larger food system.
Legal challenges, including potential class-action suits or shareholder claims, are another threat, as is stepped up political and regulatory pressure, especially from the Make America Healthy Again Commission, which already is focused on “hidden” ingredients or additives and the health impact of ultra-processed foods.
Beyond these threats, the findings – and the Healthy Florida First initiative under which the Florida Department of Health conducted the food safety test – could increase tensions between state and federal regulators. The action and results could further nurture doubt in FDA’s ability to effectively oversee the national food system that was sown by other states, including California, that have banned the sale of products within their borders that include ingredients state lawmakers deem unhealthy.
In contributing to the tug-of-war between state and national regulators, the initiative also muddies industry expectations for scientific consistency.
Ultimately, these threats go far beyond the safety of a handful of candy brands – encompassing instead farther-reaching questions about how food safety data is gathered, assessed, framed and politicized, and what that could mean for oversight and businesses’ bottom lines.
What Florida tested and found
These potential implications stem from the expansion of the Healthy Florida First initiative, which Gov. Ron DeSantis described in a statement as the state “doing our part to help Make America Healthy again” by ensuring accountability and empowering consumers “to make the healthiest choices for their families.”
The initiative began by testing infant formula for heavy metals and pesticides, but expanded to include other products marketed for children – including candy.
Under it, an independent certified lab for the Florida Department of Health tested 46 candy products from 10 companies for heavy metals and found arsenic “at elevated levels” in 28 of the confections – primarily sugar-based and fruit-flavored candies, according to the results.
The results also show that many confections were free from elevated levels of arsenic and other heavy metals.
These included many chocolate-based confections as well as those marketed as “organic” or “healthier alternatives,” Casey DeSantis said.
The difference, she concluded, “reinforces that better sourcing, better manufacturing practices, really can, in the long run, make a huge difference.”
How much arsenic is too much?
The findings raise questions about how actionable levels of heavy metals are established and enforced.
Arsenic is naturally occurring in many foods, but “tends to be in low concentrations,” except in cases where crops may have been historically treated with a pesticide high in the contaminant, such as rice or apples, Florida Surgeon General Joseph Ladapo said at the same event where the results were revealed.
But, he added, he was “shocked by the levels of arsenic in common candies,” which he said exceeded by as much as four times the amount in foods known to have high levels, such as rice.
The trio stressed that while the amount of arsenic in some candies was alarming, its impact could be magnified based on how the confections are typically consumed.
“The concern here is not necessarily about one single piece of candy on one single day. The concern is when these products are consumed, as they realistically are, repeatedly over time, so that exposure can exceed what the Department of Health has determined to be a safe allotment for arsenic,” Florida First Lady Casey DeSantis said earlier this week when she presented the findings.
She argued that because arsenic accumulates over time and across foods, children could consume dangerous amounts if they exceed serving sizes the Department of Health deems as safe – something she says is easy to do given how the products are packaged and marketed.
“Take Nerds, for example,” she said. “According to the Department’s analysis, consuming more than 96 Nerds – the small, granular pieces of Nerds – in a year exceeds what is considered safe. But, 96 Nerds, as we well know, is not typically what comes in a box.”
She estimated a “smaller box” of Nerds could contain about 2,000 candies, and the “big boxes that you get at a movie theater” could contain 8,000 pieces.
How the heavy metals were measured is a flashpoint for industry
How the heavy metals were measured in Florida is a pivotal point of contention for NCA, which says differences in technique from FDA could cause “unnecessary consumer confusion.”
It argues Florida’s announcement “demonstrates a glaring lack of transparency related to data-driven, scientific safety thresholds and the evaluation of confectionery products.”
According to Ladapo the arsenic estimates were based on “highly conservative” models that use the “strictest standards” for inputs and levels.
Those benchmarks do not appear to be tied to FDA action levels or enforcement thresholds.
Exposure risk also appears to be based on informational benchmarks and hypothetical annual limits and placed within a precautionary framework. Likewise, it is unclear if it measured inorganic versus organic arsenic. Inorganic arsenic found in soil and water is more toxic and poses higher long-term cancer risks (skin, lung, bladder) than organic arsenic,
A request to the Florida Health Department for additional information about testing techniques and analysis was not answered by press time.
“Alternatively,” NCA said, “the FDA’s Closer to Zero Initiative was created to reduce dietary exposures to naturally occurring elements (such as arsenic) and is currently working on arsenic action levels for foods consumed by children,” such as in baby food and apple juice.
The levels set by FDA followed intensive scientific analysis and debate, including public forums and comment periods.
Florida, on the other hand, “relies on ‘screening benchmarks’ that do not align with current federal regulatory standards or recognized peer-reviewed science for confectionery products,” and “hypothetical annual consumption levels,” NCA said.
As such, the trade group adds, Florida “has chosen sound bites over science – ignoring this science-based program in favor of publishing unsourced materials that amount to little more than a scare tactic.”
The trade group added that FDA’s Total Diet Study Interface interactive web-based tool released earlier this week also contradicts Florida’s conclusions.
“The FDA findings related to arsenic in confectionery accessible through this tool are significantly lower than what the State of Florida released in its confectionery study. This FDA tool provides more transparency for consumers, regulators, media and lawmakers looking to make sense of the Florida report,” it said.
Candy is a case study, not the point
As underscored by the different takes on Florida’s results, the importance of the state’s initiative and findings go far beyond candy to reveal the importance of how food safety is assessed and shared – and by whom.
Casey DeSantis’ qualification that the test was done “to support the federal MAHA movement by working as force multipliers to be able to drive accountability through testing” also could portend similar action by other states.
This is reinforced by her assessment that “FDA primarily works as a reactionary force, stepping in after problems are identified,” versus Florida’s efforts to “get in front of these problems by testing” and “leading the coalition of states to trust but verify the integrity of our food supply.”