Judge Blocks West Virginia Food Additive Ban
HB 2354's provision related to school meals still stands.
The U.S. District Court for the Southern District of West Virginia has ruled in favor of a lawsuit against a state bill banning foods containing any one of seven artificial food colors from being sold in the state.
In March, West Virginia House Bill 2354 (HB 2354) was signed into law. The first part of the law came into force on August 1, prohibiting red 3, red 40, yellow 5, yellow 6, blue 1, blue 2, and green 3 from being used as an ingredient in any meal served in a school nutrition program. The second part, which would come into force January 1, 2028, bans foods and drugs containing the same dyes, plus additives butylated hydroxyanisole and propylparaben, from being sold in the state. It amends the state code to consider foods containing the targeted additives to be “adulterated.”
In October, the International Association of Color Manufacturers (IACM) filed a lawsuit against HB 2354, arguing that the law is unconstitutional, as it does not provide a scientific basis that the targeted colorants are unsafe and therefore violates equal protection guarantees; because it is “so vague and ambiguous” that it violates constitutional due process protections; and that it operates as an unconstitutional bill of attainder.
In a December 23 Memorandum Opinion and Order, U.S. District Judge Irene Berger ruled in ICAM’s favor and blocked the state Department of Health from enforcing some provisions of HB 2354 by granting a motion for a preliminary injunction. Specifically, the provisions that would come into force in 2028 have been blocked. The school meal provisions, which have already gone into effect, are not subject to the injunction and will remain in place.
Judge Berger agreed with ICAM that HB 2354 is unconstitutionally vague, as it does not define “poisonous and injurious” and it creates a non-exclusive list of color additives by using the term “including,” which could allow the West Virginia Department of Health to arbitrarily include additional color additives deemed “poisonous and injurious” unbeholden to specific criteria.
“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,’” wrote Judge Berger. “Inasmuch as the [U.S. Food and Drug Administration (FDA)], 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.’”
The one of seven listed color additives that FDA has deemed to be “unsafe,” as referenced by Judge Berger, is red dye 3, the food use authorization for which was revoked in January 2025. It is worth noting, however, that FDA banned red 3 based on rodent studies and a technicality (i.e., the Delaney Clause, which says that if a substance is found to cause cancer in man or animal, then it could not be used as a food additive) and in response to public pressures—simultaneously maintaining that claims of the colorant being harmful to human health through dietary exposure are not supported by the available scientific information.
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