In March, West Virginia enacted a law, House Bill 2354 (HB 2354) banning foods containing any one of seven artificial food colors from being sold in the state.

On October 6, the International Association of Color Manufacturers (IACM) filed a lawsuit with the U.S. District Court for Southern West Virginia arguing that the new law is unconstitutional, as it does not provide a scientific basis that the targeted colorants are unsafe, therefore violating equal protection guarantees under the U.S. and state constitutions.

The lawsuit also alleges that the law is “so vague and ambiguous” that it violates constitutional due process protections, and that it operates as an unconstitutional bill of attainder as it singles out for prohibition and criminal sanction the targeted color additives without providing their manufacturers any opportunity to demonstrate that they are not harmful and thus not worthy of criminal penalties.

ICAM says that, if the law is allowed to be enforced, its members (i.e., color additive manufacturers and producers of foods and beverages containing the targeted food dyes) will suffer “irreparable” harm, both economically and through the deprivations of their constitutional protections.

HB 2354 amends the Code of West Virginia, Section 16, Article 7.2 to change the conditions for food adulteration. Now passed, the law considers foods containing red 3, red 40, yellow 5, yellow 6, blue 1, blue 2, or green 3, as well as butylated hydroxyanisole and propylparaben, to be “adulterated,” effectively prohibiting the sale of any such food in the state. If allowed to be enforced, beginning January 2028, the targeted food additives must not be contained in food items for sale in the state.

“MAHA”—A “Pseudoscientific Fad?”

“It appears that HB 2354 is part of a new pseudoscientific fad that seeks to upend decades-long settled science, entirely lacking in any justification,” ICAM’s lawsuit reads. The group cited the U.S. Food and Drug Administration’s (FDA’s) determinations that the seven targeted food dyes are safe for use, following a “thorough review and testing process” as required by the 1960 Color Additive Amendments.

On the other hand, under the leadership of U.S. Health Secretary Robert F. Kennedy Jr. (RFK Jr.), known for his “Make America Healthy Again” (MAHA) agenda, FDA has turned against synthetic food colorants, announcing in April its initiative to coerce industry into abandoning their use.

The movement to restrict artificial food colorants began years before “MAHA” became a widely known acronym or before the current Administration took office, however, with consumer advocates pushing lawmakers to act against red dye 3 in particular. California was the first state to pass any state food additive ban, which included red dye 3, with the October 2023 California Food Safety Act. 

FDA also revoked its food use authorization for red dye 3 in January 2025, just before the end of the last Administration—although the agency said at the time that the available scientific evidence still points to the safety of red dye 3 as a food additive.