A group representing food coloring companies has sued a host of West Virginia officials in federal court claiming the state’s ban on certain food colors and ingredients violates the state and federal constitutions.
The International Association of Color Manufacturers filed its lawsuit October 6 in U.S. District Court for the Southern District of West Virginia. The defendants are Department of Health Secretary Arvin Singh, Interim Bureau of Health Commissioner Justin Davis, Superintendent of Schools Michele Blatt and the members of the West Virginia Board of Education.
In its complaint, the IACM seeks to enjoin House Bill 2354, which was signed into law earlier this year and took effect in part August 1. The group says the new law usurps the power of the U.S. Food and Drug Administration 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 dyes and additives targeted often are used in common products such as candy, gum, cereal, ice cream and soda.
“West Virginia’s new law arbitrarily prohibits certain named synthetic color additives — used to color food and beverage products — that the U.S. Food and Drug Administration evaluated and certified as safe decades ago,” the complaint states. “Color additives are comprehensively regulated in the U.S. and elsewhere throughout the world. In this country, as required by the 1960 Color Additive Amendments, the FDA conducted an extensive investigation into the synthetic color additives that H.B. 2354 targets.
“After a thorough review and testing process, the FDA approved seven synthetic colors as safe for use — including each of the colors West Virginia now bans.”
HB 2354, which was signed by Gov. Patrick Morrisey in March, bans the use of certain food color additives, including FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1, FD&C Blue No. 2 and other ingredients in food and beverage products sold in general commerce in the state beginning January 1, 2028.
The bill also bans the same dyes in school meals starting in 2028.
“To protect ingredient manufacturers and food companies, we are asking the U.S. District Court to immediately strike down West Virginia’s flawed ban,” IACM General Counsel John H. Cox said. “The statute arbitrarily and irrationally targets color additives no U.S. agency – state or federal – nor any court has ever found to be unsafe.
“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.”
The group also says the new law unnecessarily creates substantial consumer confusion and erodes consumer trust in every company and brand that uses those ingredients in their products in the state and throughout the country.
“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 said.
In addition to the FDA, the IACM says the food ingredients covered by the new law have been “clearly and consistently” determined to be safe by the European Food Safety Agency, Health Canada and the FAO/WHO Joint Expert Committee on Food Additives.
“Against this backdrop, one would have imagined that if West Virginia were to suddenly ban color additives that were FDA-approved and used safely for decades, the Legislature would have done so (a) based on new, public, reliable scientific evidence (b) that would be reflected in a robust legislative record replete with findings of fact justifying such a ban,” the complaint states. “Nothing of the sort occurred. The statute itself and the legislative record contain no evidence supporting West Virginia’s ban. Nor could they have, because none exists.
“Instead, it appears that H.B. 2354 is part of a new pseudoscientific fad that seeks to up end decades-long settled science, entirely lacking in any justification. West Virginia merely decreed, without any attempted justification, that a handful of additives are inherently ‘poisonous and injurious.’
“The West Virginia Legislature has acted unlawfully in several, independent respects.”
Morrisey’s office says it stands by the law that was meant to “clean up our food and protect the health and well-being of West Virginia families.”
“Many of these food dyes are already banned or being phased out in European countries due to their links to negative health effects, especially in children,” Morrisey spokesman Drew Galang said. “Companies have been able to adapt to those markets, and West Virginia’s law provides ample time for them to do so.”
The IACM says the law violates the equal protection guarantees of the state and federal constitutions, is an unconstitutional bill of attainder and “is so vague and ambiguous that it violates constitutional due process protections.”
The group also says replacing these colors with natural alternatives is “not a simple swap.”
