A federal judge blocked West Virginia’s ban on artificial food dyes last week, handing a setback to Health and Human Services Secretary Robert F. Kennedy Jr.’s Make America Healthy Again initiative.
U.S. District Judge Irene Berger of the Southern District of West Virginia sided with food dye manufacturers in a 30-page ruling that halts enforcement of House Bill 2354. The law bans food and pharmaceuticals containing artificial compounds including butylated hydroxyanisole, Red 3, Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2 and Green 3.
Berger was nominated to the District Court by former President Barack Obama in 2009.
The International Association of Color Manufacturers filed the lawsuit against the West Virginia Department of Health (WVDOH) in October. The industry group argued the law is unconstitutionally vague because it fails to define what makes color additives “poisonous and injurious.”
Berger sided with the manufacturers.
“Without any clear standards, it is not clear how the WVDOH will determine if a color additive beyond those listed, is ‘poisonous and injurious,’ meaning the WVDOH is free to arbitrarily designate additional color additives as such,” Berger wrote.
“What facts or data, if any, must the WVDOH rely on before determining that additional color additives are ‘poisonous and injurious’? Is it sufficient for the WVDOH to rely on any study when making its determination or none at all? If a parent notifies WVDOH that they believe their child is sensitive to a color additive, is that a sufficient basis for a color additive to be deemed ‘poisonous and injurious,’ or must the WVDOH conduct a further investigation? It is far from clear.”
“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’.”
Berger also noted that six of the seven listed color additives have been approved by the Food and Drug Administration, which “muddies the water and creates confusion.”
Republican Governor Patrick Morrisey signed the bill into law in March. The statewide ban was scheduled to take effect January 1, 2028. Violating the law would have resulted in a misdemeanor charge and $500 fine.
Morrisey defended the law in a statement.
“We respectfully disagree with today’s ruling as we believe this decision is premature and incorrectly decided,” Morrisey said. “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.”
Kennedy visited Martinsburg, West Virginia in March during one of his first trips as as Health and Human Services Secretary.
The preliminary injunction does not apply to school food provisions of the law, which took effect in August. Those restrictions prohibit certain dyes and additives in meals served in schools as part of nutrition programs.