California Beats MAHA to Define ‘Ultra-Processed Food’ in Its Real Food, Healthy Kids Act (AB 1264)

California’s Real Food, Healthy Kids Act (AB 1264), passed with broad bipartisan support and signed into law by Governor Gavin Newsom on October 8, fundamentally reshapes school food procurement and menus by defining and targeting UPF. It also creates two new regulatory categories, “UPFs of concern” and “restricted school foods.” “UPFs of Concern” are UPFs considered by the California Department of Public Health (CDPH) to be the most harmful to schoolchildren’s health. “Restricted school foods” contain one or more of the substances in list (1) in the UPF definition paragraph below and are restricted from service or sale in schools (to be defined by CDPH’s regulations).

The statute directs the CDPH to finalize definitions of these two categories by June 1, 2028, launches multi‑year vendor reporting and state oversight, and phases out the sale and service of targeted products on K-12 public school campuses. By July 1, 2032, vendors will be prohibited from offering restricted school foods and ultra-processed foods of concern to schools, and by July 1, 2035, these products will be excluded from reimbursable school meals and competitive foods.[1] The Act also accelerates ingredient reformulation pressure by banning six synthetic food dyes (Blue 1 and 2, Green 3, Red 40, and Yellow 5 and 6) in school foods and beverages, effective December 31, 2027.

Scope and Key Definitions

AB 1264 amends the state’s Education Code and adds a new “Eating for Health” article to the Health and Safety Code. In the context of school food, the law adopts an expansive, technical definition of UPF that includes foods or beverages containing certain US Food and Drug Administration (FDA)-listed additive categories paired with high saturated fat, sodium, or added sugar, or with specified nonnutritive sweeteners and related substances, as detailed below. In crafting its definitions of “restricted school foods” and “ultraprocessed foods of concern,” CDPH must weigh nutritional profiles, adherence to the FDA’s 2024 “healthy” rule, and whether substances are common natural additives, along with peer‑reviewed scientific evidence of health harms, actions by other jurisdictions, and hyperpalatability and food addiction considerations. CDPH must review and update these definitions every five years, delaying the effective date of any new restrictions by three years to allow compliance.

Definition of “Ultra-Processed Food”

AB 1264 defines UPF as any food or beverage containing:

1. Any of the following ingredients as defined by the FDA in 21 CFR §170.3(o).

• Surface-active agents.

• Stabilizers and thickeners.

• Propellants, aerating agents, and gases.

• Colors and coloring adjuncts (other than natural color additives).

• Emulsifiers and emulsifier salts.

• Flavoring agents and adjuvants (other than spices or other natural seasonings or flavorings).

• Flavor enhancers.

• Non-nutritive sweeteners.

And either:

2. High amounts of any of the following.

• Saturated fat (defined as providing 10% or more total energy).

• Sodium (where sodium content, in mg, equals or exceeds number of calories).

• Added sugar (defined as providing 10% or more total energy).

Or:

3. Non-nutritive sweeteners (defined at 21 CFR §170.3(o)(19)) or any of the following substances.

• D-sorbitol.

• Erythritol.

• Hydrogenated Starch Hydrolysates.

• Sucralose.

• Isomalt.

• Lactitol.

• Luo Han Fruit Concentrate.

• Maltitol.

• Steviol Glycosides.

• Thaumatin.

• Xylitol.

The statute excludes certain items from the base UPF definition, including US Department of Agriculture (USDA) commodity foods, raw and minimally processed agricultural products, Class 1 milk, alcoholic beverages, and, if exempted by regulation, medical foods and infant formula.

Compliance Timelines

• December 31, 2027: Synthetic dye prohibition takes effect for school meals and competitive foods or beverages, with an exception for USDA Foods in Schools.

• February 1, 2028-February 1, 2032: Annual vendor product reporting to CDPH due for all food products sold to schools in the prior calendar year, including quantities, ingredient lists, nutrition facts, and whether the product is a UPF, restricted school food, or UPF of concern. Small businesses, cottage food operations, and microenterprise home kitchens are exempt.

• July 1, 2028-July 1, 2032: CDPH annual public reports to the legislature and governor summarizing vendor data, tracking progress, and offering policy recommendations to reduce UPFs and restricted foods in schools.

• By July 1, 2029: Schools must begin phasing out restricted school foods and UPFs of concern.

• July 1, 2032: Vendors are prohibited from offering restricted school foods or UPFs of concern to schools.

• July 1, 2035: Reimbursable breakfasts and lunches and competitive foods or beverages may not include restricted school foods or UPFs of concern (USDA Foods in Schools excepted where specified).

Bottom Line

California has produced a first‑in‑the‑nation definition of UPFs and has established a multi‑stage regime to restrict their use in school food and beverages. Near‑term priorities include eliminating six synthetic dyes by late 2027 and preparing for data reporting in 2028. Medium‑term milestones require redesigning school meal menus before the 2032 vendor prohibition, and full integration into reimbursable meals and competitive food standards by 2035.

Companies that act early to simplify ingredient selections, shift to minimally processed foods, and match nutritional profiles against the statute’s UPF criteria will be best positioned to preserve their access to California’s large K-12 market as the law phases in.

The Food, Drug, Medical Device & Cosmetics group at ArentFox Schiff is ready to respond to any questions you might have about the issue of ultra-processed foods. Please feel free to reach out to any members of the group.