The chairman of the health committee in the House of Delegates agrees lawmakers might have to adjust an upcoming ban on some artificial food additives following a judge’s order.
“I think our law is solid, but I want to clarify: This law doesn’t take effect or didn’t plan to take effect until January 1 of 2028, still two years away,” Delegate Evan Worrell, R-Cabell, said on MetroNews Talkline.
“So this allows us to come back during the legislative session, and look at this law and take into consideration this judge is ruling, and how can we effectively, you know, make sure that it does pass the muster for what this judge had to say.”
As the annual regular legislative session approaches on Jan. 14, Worrell described a close working relationship with the governor’s office “to ensure that we have a solid law to stand on.”
U.S. District Judge Irene Berger of the Southern District of West Virginia entered the 30-page order last week. It would at least temporarily halt the enforcement of portions of a newly passed West Virginia law banning certain artificial food dyes pending a deeper review in court or legislative changes.
COMMENTARY by T.J. MEADOWS: Berger Correct to Halt Food Dye Law
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.
And 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.
West Virginia’s 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.
The the statewide ban targets nine specific substances that the law classifies as “poisonous and injurious” to health.
The prohibited additives include two preservatives: Butylated hydroxyanisole and propylparaben. And included are seven synthetic color additives: FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5 and FD&C Yellow No. 6.
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 association did not challenge the ban on FD&C Red No. 3 because the U.S. Food and Drug Administration has already moved to revoke its authorization for use in food. The association also did not challenge the two preservatives.
The judge halted enforcement of the ban and 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.”
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.
Morrisey said his administration respectfully disagrees with the preliminary injunction, contending it is premature and incorrectly decided.
“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.”
Worrell, on statewide radio, said he does not believe the law is unconstitutional but he agreed its definitions might need to be more precise.
“I think maybe it is vague and we need to properly define that, of course, with studies. And we need to make sure that we’re propping up whatever laws we have, that the Department of Health has to enforce, that they are accurately worded so they can enforce them,” he said.
“So we’ll take a look at that. You know, counsel will look at that as we go in the new session and tweak whatever may have to do.”