West Virginia Gov. Patrick Morrisey issued a statement after a federal district court judge granted a food dye trade group's request for an injunction, according to WDTV.
What's happening?
West Virginia House Bill 2354 (HB 2354) was introduced in early February, and after quickly passing the state's legislative chambers, Gov. Morrisey approved it on March 24.
International law firm Duane Morris explained the provisions of HB 2354, the first state-level legislation to broadly prohibit food dyes.
As written, the legislation would effectively ban several common food dyes from West Virginia's food supply, including Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2, and Green No. 3. California instituted a similar ban on Red 3 statewide in 2023 and then banned the other six common artificial food dyes for sale in schools in 2024; both bans would take effect by the end of 2027.
In October, the International Association of Color Manufacturers, an international trade organization for the color additives industry, sued West Virginia, requesting that the court "strike down" HB 2354.
The IACM maintained that West Virginia's attempt to ban the food dyes in question undermined the Food & Drug Administration's authority and introduced barriers that would harm corporate profits in West Virginia and beyond.
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"Simply stated, bans on FDA-approved food ingredients will make it harder for businesses to operate in West Virginia and other states, as well as increase the cost of food for consumers at a time when grocery prices are already too high," said John Cox, the IACM's General Counsel.
On Dec. 23, United States District Court for the Southern District of West Virginia Judge Irene Berger granted the IACM's request for a preliminary injunction, indefinitely preventing the state from enforcing HB 2354.
In the order, Judge Berger characterized the food dye ban as "unconstitutionally vague," citing a small window for compliance on the part of manufacturers, the potential for "arbitrary enforcement," and what she considered an ill-defined descriptor: "poisonous and injurious."
Why is this injunction concerning?
On April 22, the FDA issued a press release announcing several measures to eliminate synthetic food dyes from the American food supply.
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Yes 👍 In the press release, the agency described them as "petroleum-based synthetic dyes." In March 2024, the Environmental Working Group noted that the United States was one of the "few industrialized countries without strict regulations" on food dyes.
According to the EWG, Red No. 40, Yellow No. 5, and Yellow No. 6 account for 90% of the food dyes used in the U.S. Research has linked these chemicals to behavioral issues in children, and in the European Union, foods containing them have a warning label.
In April, the University of Texas' MD Anderson Cancer Center cited two studies linking exposure to certain food dyes with cancer in laboratory rats.
As dietician Lindsey Wohlford explained, "the level of risk to humans [posed by food dyes] is unclear."
What's being done about it?
After Judge Berger's order was issued, Gov. Morrisey issued a statement.
"We respectfully disagree with [the] ruling, as we believe this decision is premature and incorrectly decided," he began, adding that the state planned to challenge it.
"We are reviewing our legal options and will continue to press forward with our efforts to get harmful crap out of our food supply," Morrisey added.
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