Preliminary injunction halts enforcement of West Virginia food dye ban

WEST VIRGINIA (WCHS) — A federal judge has issued a preliminary injunction order halting the enforcement of certain areas of recent West Virginia legislation that banned certain food colors and ingredients.

The International Association of Color Manufacturers originally filed a lawsuit over the state of West Virginia in October over the matter, saying that the legislation violates West Virginia and United States Constitutions.

The order was issued by United States District Judge Irene Berger. In the order, Berger said the law regarding dyes to be “poisonous and injurious” is likely written to be unconstitutionally arbitrary and vague.

Berger stated the following in her ruling:

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. 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. As such, because Section 16-7-2(b)(7) leaves such ad hoc and subjective decision-making to the WVDOH, it leaves the door open for arbitrary enforcement, and thus, is unconstitutionally vague.

IACM said that West Virginia law unlawfully took over the power of the United States Food and Drug Administration to make food safety decisions. IACM also said the law interfered with interstate commerce and caused economic harm to IACM member companies and their customers without providing any “substantial or rational basis” for deeming products unsafe.

The legislation, known as House Bill 2354, was signed by West Virginia Governor Patrick Morrisey in March, banning the use of certain food dyes, including Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2 and Green No. 3 in school meals beginning in August.

However, according to court documents, the preliminary injunction does not extend into school nutrition programs.

The preliminary injunction bars the West Virginia Department of Health from enforcing the ban – although the ban was not set to be fully enforced until 2028.

Morrisey disagreed with the ruling on social media, saying the decision is “both premature and wrongly 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 but will continue to press forward with our efforts to get harmful crap out of our food supply.”