A federal judge’s preliminary injunction order would halt the enforcement of portions of a newly passed West Virginia law banning certain artificial food dyes.
U.S. District Judge Irene Berger of the Southern District of West Virginia entered the 30-page order on Tuesday.
The International Association of Color Manufacturers had challenged the West Virginia law aimed at banning several FDA-approved synthetic color additives, contending arbitrary enforcement was likely because it does not define “poisonous and injurious.”
The judge found the law likely to be unconstitutionally vague because it failed to provide adequate notice or standards to prevent arbitrary enforcement by the West Virginia Department of Health.
In her opinion, Berger asked, “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.”
If West Virginia wants to prohibit color additives as being harmful or poisonous, Berger wrote, then the state must provide clear guidance.
The case will go on, with a higher level of scrutiny in court, but until there’s a resolution the West Virginia Department of Health is barred from enforcing the ban, which was not set for full enforcement until 2028.
“Granting an injunction will not harm the WVDOH inasmuch as it has not begun taking steps towards enforcement, nor will it harm the state’s ability to enact health and safety legislation,” Berger wrote.
This past spring, Gov. Patrick Morrisey signed into law the prohibition of certain food dyes being used in school lunches and then a later ban on those dyes in food items for sale in West Virginia.
The new West Virginia law would ban certain food additives in school nutrition programs including butylated hydroxyanisole, propylparaben and seven color additives. Exemptions allow for school fundraisers off site or after the school day.
The ban on certain food additives in school nutrition programs took effect this past August 1, and Berger’s order does not affect the law’s provision governing school nutrition programs.
A broader statewide ban on the artificial dyes in West Virginia food products was set to go in effect in 2028, and that’s the part that Berger has halted for further review.
In April, the U.S. Health and Human Services secretary, Robert F. Kennedy Jr., praised West Virginia’s policy for putting pressure on the makers of foods and beverages to phase out petroleum-based artificial colors in the nation’s food supply.
Morrisey, responding to Judge Berger’s temporary injunction order, said his administration respectfully disagrees.
“West Virginia will continue to defend its authority to protect the health and well-being of our citizens, especially children,” Morrisey said. “We are reviewing our legal options and will continue to press forward with our efforts to get harmful crap out of our food supply.”
Delegate Evan Worrell, chairman of the health committee in the House of Delegates, said he strongly disagrees with the ruling and remains confident that the Legislature acted within its authority to safeguard public health.
“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,” said Worrell, R-Cabell. “This fight is far from over.”