by Staff Attorney Emily Stone
Over the past year, the nutrition and health initiative Make America Healthy Again (MAHA) spearheaded by Department of Health and Human Services (HHS) Secretary Robert Kennedy has gotten a lot of attention for its movement on both the state and federal levels. On the federal level, HHS has announced a number of agency actions that promote MAHA-related policies, and on the state level, a number of state legislatures have proposed similar MAHA-related legislation. Additionally, there has been movement on these issues from both state agency actions and through private legal challenges. This article is the third in a series discussing the movements of MAHA, and it will address non-legislative state agency actions and consumer challenges.
Movement this year
Since being confirmed as HHS Secretary earlier this year, Secretary Kennedy has rolled out several MAHA-related programs, including a six-pronged plan to phase synthetic petroleum-based color dyes from the food supply, a new food Chemical Review Program, a joint nutrition-focused research program with the National Institutes of Health, and announcing approval of new natural color additives. To learn more about these agency actions, click here to read NALC article “’MAHA’ Movement: June 2025.” On the state side, there’s been a wave of legislative proposals in numerous state legislatures. The introduced and enacted MAHA-related legislation addressed priorities like banning the sale of food with artificial food dyes, banning foods with artificial dyes from being present in school meals, prohibiting the purchase of specific foods with SNAP benefits, defining the term “ultra-processed foods,” creating labeling requirements for foods with artificial food dyes, and establishing nutrition related education initiatives. To learn more about these proposals, click here to read NALC article “‘MAHA’ Movement: New Texas and Louisiana Laws.”
MAHA movement on the state level has not only been occurring in the legislature. In some states, agency or department heads have issued directives aimed at these priorities. For example, in July, the Oklahoma State Superintendent announced an initiative to implement “free, healthy meals for all Oklahoma students.” This initiative would require Oklahoma local school districts to use existing state and federal operational dollars to pay for the cost of meals and requires that all meals and snacks served in Oklahoma schools are “free of seed oils, artificial food dyes, ultra-processed foods, pesticide laden food, and junk food vending machines.” These changes were set to go into effect for the 2025/2026 school year. However, after conflicting statements from other state leaders about the initiative’s legality, it has not been thoroughly implemented yet statewide and it appears as though no penalties have been imposed on school districts who have not implemented the program.
Texas Attorney General’s Investigations
Similar to Oklahoma, the head of a Texas state agency, its Attorney General Ken Paxton, has taken up the MAHA mantle. In this circumstance, AG Paxton has opened several Department of Justice investigations into food manufacturing companies for alleged violations of Texas consumer protection laws. Specifically, Texas opened investigations this year into WK Kellogg Co. (Kellogg’s), General Mills, Inc. (General Mills), and Mars, Incorporated (Mars). Timeline of the Texas investigations:
- April 5, 2025 – Announcement of investigation into Kellogg’s
- May 13, 2025 – Announcement of Texas investigation into General Mills
- June 18, 2025 – Announcement that General Mills Agreed to remove artificial dyes from its products.
- July 16, 2025 – Announcement of Investigation into Mars
- August 13, 2025 – Announcement of “Assurance of Voluntary Compliance” with Kellogg’s
Investigation into Kellogg’s
On April 5, 2025, AG Paxton announced his department was investigating Kellogg’s for possibly violating Texas consumer protection laws. The alleged violation stemmed from Kellogg’s use of the term “healthy” on products that contained petroleum-based artificial food colorings. Specifically, AG Paxton claims that Kellogg’s cereal contained food colorings that have been linked to “hyperactivity, obesity, autoimmune disease, endocrine-related health problems, and cancer.” Though AG Paxton has not revealed which consumer protection laws he believes Kellogg’s has violated, the press release announcing the investigation did mention that Kellogg’s had previously committed to removing the artificial dyes from its products sold in the United States, but it never followed through on that commitment.
On August 13, 2025, AG Paxton announced that his department has reached a legal agreement with Kellogg’s to ensure that the company will permanently remove toxic dyes from its cereals. This legal agreement is called an Assurance of Voluntary Compliance (AVC), and it is signed by both AG Paxton and Kellogg’s. An AVC is a legal tool that is used by state attorneys general to enter into an agreement with an individual or business where the individual or business commits to abide by certain standards, follow specific practices, and uphold consumer protection laws. Usually, these agreements are entered into when an AG believes that the individual or business has or may in the future violate a consumer protection law; however, signing an AVC is typically not considered an admission of guilt.
A lot of states have statutes that address the procedure for adopting an AVC. In Texas, the AVC provisions can be found at TX Ins Code § 562.251-253. Per the Texas code, an AVC must be in writing and filed with the department and is not an admission of guilt. However, a failure to comply with the AVC is prima facie evidence of a violation of the consumer protection laws. AVC’s are also often signed with multiple state AGs and individuals or businesses. The AVC with Kellogg’s will require the company to remove artificial food colorings from its cereals by the end of 2027. However, the AVC was not made public, so it is unclear at this time what the penalty for violating it is. Additionally, it is not clear if the AVC is only applicable to Kellogg’s products being sold in Texas, or if any other state AGs signed on as well.
Investigation into General Mills
On May 13, 2025, AG Paxton announced that he had sent General Mills, Inc. (General Mills) a Civil Investigative Demand (CID) as part of a new investigation. A CID is a discovery tool used by federal and state agencies to gather information in a civil investigation. It is typically used as a pre-litigation investigative tool in a non-criminal investigation. Specifically, this AG Paxton stated that this investigation would look into General Mills alleged “illegal misrepresentations of its food products as ‘healthy.’” In the press release announcing the investigation, AG Paxton claims that General Mills engaged in “false marketing” by labeling products as a “good source” of vitamins and minerals and “healthy” when they contain petroleum-based food colorings that Paxton claims “contribute to hyperactivity disorders, endocrine dysfunction, autoimmune disease, cancer, and obesity amongst children.” AG Paxton additionally highlighted General Mills’ decision in 2015 to remove artificial dyes from six of its cereals, but states that two years after, the company started reselling its cereals with the artificial dyes in the United States while it sells the “reformulated cereal without artificial dyes in other countries.”
On June 18, 2025, AG Paxton announced that General Mills had agreed to remove dyes from its products. Specifically, the day before Jun 17, 2025, General Mills published a news release on its own website announcing its commitment to remove certified colors from all U.S. cereals and all K-12 school foods by summer 2026, and all U.S. retail products by the end of 2027. “Certified colors” refers to artificial color additives that require certification from the FDA before it can be used in food. Under the Food, Drug, and Cosmetics Act, all artificial or synthetic color additives must be certified as safe before they can be used in foods. In AG Paxton’s press release regarding General Mills’ new commitment, he did not state whether the investigation would remain ongoing. Additionally, it is worth noting that in contrast to Kellogg’s signing of the AVC, General Mills’ commitment is not legally binding.
Investigation into Mars
On July, 16, 2025, AG Paxton announced his department was also investigating Mars, Incorporated (Mars) for alleged deceptive trade practices that violate Texas consumers’ rights. The press release from the AG specifically mentions that Mars failed to remove color dyes from its products sold in the US after publicly pledging to do so in 2016 but did remove the same color dyes from its European products. Additionally, AG Paxton claims that Mars has falsely stated that “artificial colors pose no known risks to human health or safety,” and has issued a CID to obtain documents from Mars as a part of the investigation. Similar to the cases with Kellogg’s and General Mills, the CID has not been made public, or has AG Paxton clarified which specific Texas consumer laws have been violated by Mars actions.
Just a week after the announcement of AG Paxton’s investigation, Mars announced on July 24 that it will begin to offer versions of its popular candy products that do not contain artificial colors. Specifically, the food manufacturer states that in 2026 it will start offering M&Ms, Skittles, Starbucks, and Extra gum products that are free of certified FD&C colors. Though extensive details have no been made available, it appears as though Mars will continue to sell these products with artificial colors but will now also offer additional options with naturally occurring dyes. AG Paxton has not made a formal press release since Mars made its announcement, and it is unclear whether the investigation is ongoing or satisfied by Mars commitment. Similar to General Mills, Mars’ commitment differs from Kellogg’s AVC because it is not a legally binding agreement.
Why is this noteworthy?
Though several states have taken steps in line with the MAHA priorities this year, the efforts of Texas AG Paxton are noteworthy because they were nonlegislative actions. Further, the use of an AVC is significant because it is the first time a food manufacturing company has signed a legally binding agreement – for which noncompliance will result in a type of legal penalty. Though over the past year, many food companies have made similar commitments, like General Mills’, to remove artificial color dyes from their food, all of these commitments are both voluntary and without any type of penalty for failure to follow through. A list of companies who have made this type of commitment can be found on the Department of Health and Human Services “MAHA Tracker” website.
The use of an AVC by Texas to ensure Kellogg’s commitment is particularly interesting because AVC’s are legal tools that have often been used by states’ attorneys general in dealings with tobacco companies. Several states have AVCs between the state’s AG and tobacco retailers to ensure the responsible marketing of tobacco products. For example, 7-Eleven, Inc. has this AVC with 40 states and the District of Columbia where it agrees to abide by certain standards and practices in its marketing of tobacco products. The use of a legal tool often associated with the regulation of tobacco products is noteworthy because some have compared the alleged addictive nature of UPFs and foods made with ingredients like artificial dyes to the addictive nature of tobacco. If the trend of states proposing MAHA-related legislation continues and different standards are implemented across the states, it will become challenging for food manufacturers to follow a patchwork set of standards. This could lead to more food manufacturers showing interest in signing AVCs with multiple state AGs to help standardize industry practices.
Challenge on Ultra-processed Foods
The comparison between UPFs and tobacco has also been utilized by private individuals seeking legal relief. Recently, 11 food manufacturers faced a legal challenge from a consumer who claimed that the companies created ultra-processed foods (UPF) that were addictive in nature and marketed those products to children. In Martinez v. Kraft Heinz Company, Inc., et al., Kraft Heinz, Mondelez, Post Holdings, Coca-Cola, PepsiCo, General Mills, Nestle, Kellanova, Kellogg’s, Mars, and Conagra were sued by a plaintiff who alleges that he developed type 2 diabetes and non-alcoholic fatty liver diseases at age 16 because he regularly ingested UPFs made by those companies. UPFs are considered foods which have undergone processing and contain multiple ingredients. Currently, there is no legal definition or standard for what qualifies as an UPF. However, the FDA and USDA have stated their intention to create one and sought stakeholder input earlier this year.
In Martinez, the court dismissed the case because it determined the plaintiff failed to show that his consumption of UPFs made by the defendants led to his disease. In particular, the court notes that the plaintiff did not specify how often he consumed the defendant’s products, what amounts of the product he consumed, or when. Further, the court stated that the plaintiff did not mention specific foods by name, but merely mentioned consuming brands owned by the 11 companies. Most of the brands stated by the plaintiff have multiple food products that operate under the brand name. For example, the plaintiff discusses consuming products from the Old El Paso brand but does not specify which of the 111 different products produced under that brand he specifically consumed. Thus, the court dismissed the case because he was unable to prove more than the “mere possibility of causation.” The dismissal of Martinez shows that to prove consumption of UPFs leads to a diagnosis of diseases like type 2 diabetes or fatty liver disease; a plaintiff will have to show specific evidence that consumption of a certain UPF caused the harm.
In his complaint, the plaintiff additionally argues that “Big Tobacco” influenced the food industry by “us[ing] their cigarette playbook to fill our food environment with addictive substances that are aggressively marketed to children and minorities.” He alleges that the “same kind of brain research . . . used to increase the addictiveness of cigarettes” was utilized in the food industry’s formulation of UPFs. While the court states that it is “deeply concerned about the practices used to create and market UPFs,” it still ultimately dismisses the case because the plaintiff failed to prove that the food manufacturers’ actions caused his development of type 2 diabetes and fatty liver disease.
Conclusion
Over the past year, MAHA has seen movement on both the federal and state level. This movement includes initiatives by federal agencies, state legislative proposals, and actions from state agency actors. Specifically, Texas’ AG Ken Paxton opened three investigations into food manufacturers’ use of artificial food dyes and secured the first legally binding agreement with a food company for its discontinued use of food dyes. Additionally, private consumers have taken up the MAHA mantle and sued food companies for their formulation and marketing of UPFs. Though Martinez was ultimately dismissed, its argument might be one that other consumers adopt.