News broke late Tuesday of a federal court injunction issued in Charleston that temporarily halts West Virginia’s proposed ban on foods containing certain artificial coloring dyes.
U.S. District Judge Irene Berger of the Southern District of West Virginia issued a 30-page preliminary injunction after finding serious constitutional flaws in the statute. The law was challenged by the International Association of Color Manufacturers, which argued the legislation invited arbitrary enforcement because it failed to define what qualifies as “poisonous and injurious.” Judge Berger agreed, concluding the law is likely unconstitutionally vague because it does not provide regulated parties with clear notice of what conduct is prohibited or meaningful standards to guide enforcement by the West Virginia Department of Health.
In her opinion, Berger questioned what evidence – if any – the agency would be required to rely on when making determinations under the law. The statute, she noted, offers no guidance on whether scientific data, studies, or specific criteria are required at all.
Berger’s order does not affect the existing ban on dyes in meals provided at school.
Supporters of H.B. 2354 did not wait long to respond.
“West Virginia will continue to defend its authority to protect the health and well-being of our citizens, especially children,” Governor Patrick 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.”
One House member went further.
“Imagine being so addicted to profit that you would go to court to fight for your company’s ability to willingly and knowingly continue to poison the kids of this state and nation because you refuse to alter your formulas,” Delegate Elliott Pritt wrote on social media. “Pretty evil if you ask me.”
Notably, the dyes covered by the law have been approved by the FDA for use in food.
One exception – Red Dye No. 3 – was banned by the FDA earlier this year after studies linked it to cancer in lab rats. The FDA maintains the remaining dyes are safe, though advocacy groups continue pushing for a federal ban on all synthetic food coloring.
Some suggest dyes may be linked to hyperactivity in children.
For the average person, the issue is confusing. That’s precisely why the FDA exists. Yet distrust of federal agencies runs high today, complicating the debate.
Even so, the logic behind Judge Berger’s ruling is sound. Her reasoning is careful and well supported.
West Virginia is poorly positioned to make these determinations independently. Has the state conducted research rebutting FDA conclusions? No. If not, why substitute state judgment for federal expertise?
Better yet why not leave it to the market? If consumers – or segments of them – object to foods containing these dyes, the simplest solution is to pass on buying them. Manufacturers react to markets – always have. In fact, dye-free options already exist. They may require more effort to find or cost more, but they are available. Many corporations have already pledged changes.
The state insists this is about health. Fine – then why stop at school meals? Why allow products with banned ingredients at off-site or after-hours school fundraisers? Is it acceptable to be unhealthy, just not on school property? That logic doesn’t hold.
And come 2028, border county residents will have one more reason to shop across state lines. If they go across the border for food, they’ll buy other goods and services there too. No need to make multiple stops here and there.
The once core conservative principles of limited government, free markets, and personal responsibility seem absent from laws like this. These guiding beliefs – sadly now foreign to modern, far-right conservatives – don’t require a new law or a judge’s ruling or anything else beyond the people making choices. If citizens are willing to accept this level of state intervention, what comes next in the name of the public good? And don’t be fooled, this is a precursor to something more and something more after that.
A free society depends on allowing people to make their own choices – even bad ones – left to live with the consequences. Better that than further eroding personal liberty, one well-intentioned regulation at a time.
Berger’s injunction is a chance to re-think this legislation. Odds are that doesn’t happen – the legislature may try to “fix” the law again this session to make her concerns moot… We’ll see.