Obama-appointed judge blocks WV from enforcing ban on artificial dyes in foods after food dye makers sue

HB 2354, which is set to go into effect in January 2028, classifies cases of "food, drink, confectionery, or condiment" as being "adulterated" if it contains "any added substance or ingredients which are poisonous or injurious to the health, including butylated hydroxyanisole, propylparaben, FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6." Violations of the law including misdemeanor charges and fines of up to $500 or jail time of up to one year. The law also bans the use of the color additves "as an ingrediant in any meal served in a school nutrition program." The school provision went into effect in August 2025.

The IACM argued that the law "violates the Equal Protection Clause, is a prohibited bill of attainder, and is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment."

In regards to the Equal Protection Clause, the IACM argued that it violates this "because it singles out the manufacturers and users of the named color additives and does not offer a basis for why such color additives must be banned, therefore failing rational basis analysis," Berger wrote, later adding, "Pointing to this lack of factual findings, as well as the FDA’s approval of such color additives, the Plaintiff argues that the West Virginia legislature was mistaken about the safety of the named color additives."

Berger included comments made by lawmakers during the process of passing the law, who focused on the well-being of children, with Delegate Adam Burkhammer saying in a February House floor debate, "The problem is hyperactivity. We live in a state where many of our elementary school kids are medicated, dealing with ADHD or some type of autism symptoms, and what the studies have begun to show is that these additives, that add no value to the nutritional value, only appearance. . . are actually feeding into hyperactivity and ADHD."

Delegate Brandon Steele said in the same House floor debate, "children [in Japan] live longer, and healthier, and happier lives . . . because [the Japanese] have rejected these additives." Senator Laura Chapman said during Senate floor debate in March that some of the color additives are "petroleum or crude oil based and linked to cancer, hyperactivity, and memory issues."

Berger struck down the Equal Protection Clause argument, writing, "Based on what has been presented, the Court finds the Plaintiff has failed to carry the heavy burden required under a facial challenge, inasmuch as there appears to be a rational basis for H.B. 2354’s enactment (protecting the health and safety of the public). The Plaintiff has not demonstrated a likelihood of success on the merits with respect to the equal protection claim."

Berger also struck down the bill of attainder argument as well, in which the plaintiffs had argued that "by naming the enumerated color additives, it singles out the manufacturers and users of those color additives." Berger wrote, "the Court finds H.B. 2354 does not single out a particular individual or group, does not impose legislative punishment, and explicitly provides for a judicial trial, and therefore, the Plaintiff is unlikely to succeed on the merits with regard to this claim."

Berger did, however, side with the IACM on its vagueness claim. "Because there are no criteria to guide the determination of additional color additives as “poisonous and injurious,” H.B. 2354 provides no notice as to the inclusion of additional color additives, leaving the door open for arbitrary enforcement. The Court, therefore, finds the Plaintiff is likely to succeed on its vagueness claim."

The IACM had argued that the bill "leaves the door open for arbitrary enforcement because it does not define 'poisonous and injurious' and does not foreclose other color additives not contained in the enumerated list from being deemed as such. Further, the Plaintiff argues that H.B. 2354 provides no guidance for determining what other substances may be considered 'poisonous and injurious' beyond those color additives included in the list following that term."

The state argued that the bill was not unconstitutionally vague, because the bill "includes an enumerated list of color additives deemed as 'poisonous and injurious,' it cannot be considered vague because it is clearly applicable to those named color additives."

The IACM took issue with the phrases "poisonous and injurious" and "including" that preceded the list of dyes and additives, arguing on the latter term that it "creates a nonexclusive list."

Berger ruled that the section is unconstitutionally vague because it "fails to provide sufficient notice and invites arbitrary enforcement." She said that the term "poisonous and injurious" was "undefined, and although that alone is not sufficient to render a statutory provision vague, as discussed below, the inclusion of the named color additives generates uncertainty as to the status of other color additives."

Berger continued, "Section 16-7-2(b)(7) does not foreclose other color additives from being deemed 'poisonous and injurious' because the word 'including' following that term and preceding the enumerated list of color additives renders that list nonexclusive. Moreover, Section 16-7-1 et seq. does not provide criteria to guide any determination as it pertains to additional color additives. As a result, other color additives could be included without any notice for why or how they are being deemed 'poisonous and injurious.'"

She later added, "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."

West Virginia Governor Patrick Morrisey said in a statement in regards to the ruling, "We respectfully disagree with today’s district court ruling to enjoin our food dye ban as this 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. We are reviewing our legal options but will continue to press forward with our efforts to get harmful crap out of our food supply."

IACM v WV by Hannah Nightingale