Photo Courtesy/U.S. FDA

CHARLESTON – West Virginia’s new law banning certain food dyes and additives in food sold in the state doesn’t go into effect until 2028. But a federal judge issued a halt on the law while the case moves through the court system.

In a memorandum opinion and order issued Tuesday evening, U.S. District Judge Irene Berger granted a motion for a preliminary injunction sought by the International Association of Color Manufacturers (IACM) prohibiting the state Department of Health from enforcing the provisions of House Bill 2354, banning certain products from food in West Virginia.

HB 2354 amended State Code regarding adulterated food and drugs banning specific food additives and dyes found in processed food products sold in the state, such as red dye No. 3 and yellow dye No. 5, deeming them unsafe.

Other prohibited additives include butylated hydroxyanisole, propylparaben, red dye No. 40, yellow dye No. 6, blue dye No. 1, blue dye No. 2, and green dye No. 3. The bill also protects individuals in the state from criminal provisions in the bill as long as they sell less than $5,000 in aggregate food sales per month for products containing the banned food additives and dyes.

Under State Code, individuals who knowingly contaminate food items for sale containing the banned food dyes and additives without informing the buyer could be charged with a misdemeanor and face potential fines up to $500, spend up to one year in prison or both, while also covering the costs of analyzing the adulterated substance.

The ban on food products was set to go into effect on Jan. 1, 2028. While the court rejected claims that the law was a bill of attainder – a legislative act that unfairly singles out a person or group – Berger found the legislation unconstitutionally vague because it failed to provide objective standards for what constitutes a “poisonous” ingredient.

“The (IACM) concedes that the named color additives are banned by H.B. 2354, but it argues that because the term ‘poisonous and injurious’ is undefined and the word ‘including’ preceding the enumerated list of color additives creates a nonexclusive list, HB 2354 is unconstitutionally vague because it permits the WVDOH to arbitrarily include additional color additives as ‘poisonous and injurious’ without any criteria guiding its determination,” Berger wrote.

Berger concluded that food manufacturers would suffer irreparable harm from high compliance costs and the threat of arbitrary enforcement.

“The uncertainty surrounding what color additives may be prohibited in addition to the listed products makes compliance an impossible guessing game,” Berger wrote.

“If West Virginia wants to prohibit color additives as ‘poisonous and injurious,’ then it must provide clear guidance for determining what substances are ‘poisonous and injurious’. Inasmuch as the (U.S. Food and Drug Administration), upon which the manufacturers reasonably rely, has not found six of the seven listed color additives to be unsafe, it is imperative that West Virginia define and, thereby, give necessary notice and guidance as to what constitutes ‘poisonous and injurious’.”

Restrictions in HB 2354 that went into effect on Aug. 1 prohibit the inclusion of certain dyes and additives in meals served in schools as part of nutrition. According to the bill, schools would still be able to sell non-compliant items for fundraising purposes if sold off-premises or after school hours. Berger’s preliminary injunction does not apply to the school food provisions.

The IACM filed a lawsuit against the state Department of Health on Oct. 6 in the U.S. District Court for the Southern District of West Virginia. The IACM is seeking an order and judgement from the court declaring that HB 2354 violates both the state and U.S. constitutions, as well as a permanent injunction blocking enforcement of HB 2354, allow the sale of color additives, and award attorney fees to the IACM. A request for comment from the IACM was not returned.

“We respectfully disagree with today’s ruling as we believe this decision is premature and incorrectly decided,” said Annie Moore, a spokesperson for Gov. Patrick Morrisey. “West Virginia will continue to defend its authority to protect the health and well-being of our citizens, especially children. We are reviewing our legal options and will continue to press forward with our efforts to get harmful crap out of our food supply.”

House Health and Human Resources Committee Chairman Evan Worrell, R-Cabell, was a co-sponsor of HB 2354. In a statement Tuesday evening, Worrell said he was disappointed in the court’s ruling.

“This ruling allows the continued use of synthetic food dyes that many parents, physicians, and scientists have raised serious concerns about, particularly their impact on children’s health and behavior,” Worrell said. “Let me be clear, this legislation was never about politics or overreach. It was about protecting West Virginia families, especially our kids, from unnecessary chemical additives that other countries have already restricted or banned.”

The U.S. FDA already banned red dye No. 3 nearly one year ago, ordering its removal from food products by Jan. 15, 2027, and from ingested drugs by Jan. 18, 2028. Since being appointed by President Donald Trump as secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy Jr. has made phasing out certain food dyes and additives a priority, securing deals with major food producers to stop using synthetic food dyes.

“While I respect the judicial process, I strongly disagree with this outcome and remain confident that the Legislature acted within its authority to safeguard public health,” Worrell said. “I will continue to work with legal experts, health professionals, and my colleagues to ensure that this law is ultimately upheld and that West Virginia puts the well-being of its people ahead of industry convenience. This fight is far from over.”