Lawsuit challenging West Virginia’s food dye ban hits the courts

By Autumn Shelton, RealWV

CHARLESTON, WV – On Oct. 6, the International Association of Color Manufacturers (IACM), based in Washington DC, filed a lawsuit in the Southern District of West Virginia asking for the courts to strike down recent legislation banning certain food dyes and ingredients from use in the state. 

According to House Bill 2354, passed on March 14, 2025 and signed into law by Gov. Patrick Morrisey, Red Dye No. 3, Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2, and Green Dye No. 3 will be “deemed unsafe and shall not be permitted as an ingredient in any meal served in a school nutrition program.” This became effective on Aug. 1. 

Additionally, beginning on Jan. 1, 2028, the same dyes as well as the preservatives butylated hydroxyanisole and propylparaben will be banned from food and drugs sold throughout West Virginia. 

However, the newly filed lawsuit claims this legislation is unconstitutional. 

“To protect ingredient manufacturers and food companies, we are asking the U.S. District Court to immediately strike down West Virginia’s flawed ban.  The statute arbitrarily and irrationally targets color additives no U.S. agency – state or federal – nor any court has ever found to be unsafe,” said John H. Cox, IACM General Counsel in a press release issued on Monday. “IACM strongly supports the continued safe use of all FDA-approved color additives, including FD&C colors, which are among the most thoroughly studied and strictly regulated ingredients in food. West Virginia’s ban isn’t supported by scientific evidence.”

“Simply stated, bans on FDA-approved food ingredients will make it harder for businesses to operate in West Virginia and other states, as well as increase the cost of food for consumers at a time when grocery prices are already too high,” Cox concluded. 

The lawsuit claims that throughout legislative discussion on the bill, “there was little debate on H.B. 2354, and none of the debate that occurred was scientific in nature.” 

The lawsuit continues that “The Secretary of the U.S. Department of Health and Human Services, Robert F. Kennedy, was present at H.B. 2354’s signing on March 24, 2025, at which Governor Morrisey commented that the law made West Virginia the leader of ‘the Make America Healthy Again mission. . .’ and thanked ‘the Legislature, HHS Secretary Robert Kennedy, and the entire Trump Administration for helping us launch this movement right here in West Virginia.’ Notably, the FDA, which falls under Secretary Kennedy’s purview, has not changed its position on the six colors that are the subject of IACM’s suit, which are codified as ‘safe’ by federal standards.” 

The suit names Arvin Singh, in his official capacity as cabinet secretary of the West Virginia Department of Health; Justin Davis, in his official capacity as Interim Commissioner of West Virginia Bureau for Health; members of the West Virginia Board of Education; and State School Superintendent Michele L. Blatt as defendants. 

On Oct. 8, Judge Irene C. Berger issued a memorandum opinion and order stating that the plaintiff’s motion for preliminary injunctive relief be denied. 

“Given that part of the statue has previously gone into effect, and it will be more than two years before the statute goes fully into effect, the court finds that the Plaintiff has not established that it, or its members, are likely to suffer irreparable harm in the time before the court has the opportunity to hear from the Defendants and rule on the preliminary injunction,” court documents state. 

Judge Berger also ordered the Plaintiffs to serve the Defendants with copies of their motions and other court documents. The Defendants have been ordered to respond by Oct. 17.