Court Halts West Virginia Ban on Color Additives

For now at least, a U.S. District Court granted a preliminary injunction halting West Virginia’s enforcement of a new law that bans the seven beleaguered color additives and two other ingredients, calling the law “unconstitutionally vague.”

The International Assn. of Color Manufacturers (IACM) brought the suit against HB 2354, which overwhelmingly passed both houses in the state legislature early last year and was signed by the governor last March. Beginning Jan. 1, 2028, it bans the use of food color additives Blue 1 & 2, Green 3, Red 3 & 40 and Yellow 5 & 6, along with butylated hydroxyanisole and propylparaben. The law labels all the named ingredients “poisonous and injurious.”

IACM claims the law “usurps the power of the … FDA to make food safety decisions, interferes with interstate commerce and causes economic harm to IACM member companies and their customers without providing any substantiated or rational basis for classifying covered products as unsafe.”

“The court agreed that IACM was likely to succeed on their claim that the legislation was unconstitutionally vague and likely to lead to arbitrary enforcement as to what is considered 'poisonous or injurious,' ” wrote the Kelley Drye law firm. “The court also highlighted that many banned additives are FDA approved, which ‘muddies the water and creates confusion’ about what substances are harmful.”

The injunction does not stop the ban on the ingredients from school nutrition programs, which went into effect last August.

West Virginia Governor Patrick Morrissey said the state will fight the injunction.