Judge grants industry request to stall ban on food dyes

A federal judge in West Virginia has temporarily blocked the state’s ban on artificial dyes in foods before it can take effect, granting a request from an industry group. 

U.S. District Judge Irene Berger of the Southern District of West Virginia granted a motion for a preliminary injunction in a lawsuit filed by the International Association of Color Manufacturers (IACM). The order means enforcement of the law will be paused as the case moves forward.

West Virginia’s H.B. 2354, passed by the state Legislature and signed by Republican Gov. Patrick Morrisey in March 2025, bans the use of certain food color additives, including Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2, and other ingredients. 

The ban was set to go into effect on Jan. 1, 2028, to give companies time to adjust without causing major disruptions for consumers. 

“The statute arbitrarily and irrationally targets color additives no U.S. agency — state or federal — nor any court has ever found to be unsafe,” the IACM said in a statement announcing its suit, adding that the ban lacks “scientific evidence.” 

In a memorandum opinion and order, Berger rejected claims that the law was unfairly targeting color manufacturers. However, she found the challengers were likely to succeed on their claim that the legislation was unconstitutionally vague.  

The law in question described the additives as “poisonous or injurious,” but Berger agreed with the IACM argument that the term was never defined and could leave the door open for arbitrary enforcement. 

Many of the color additives specifically mentioned in the law are approved by the Food and Drug Administration, which Berger said “muddies the water and creates confusion” as to what substances constitute “poisonous and injurious.” 

“Without any clear standards, it is not clear how the WVDOH (West Virginia Department of Health) will determine if a color additive beyond those listed, is ‘poisonous and injurious,’” Berger wrote. “The uncertainty surrounding what color additives may be prohibited in addition to the listed products makes compliance an impossible guessing game.” 

Health and Human Services Secretary Robert F. Kennedy Jr. has made removing artificial dyes from food a key priority from the day President Trump tapped him for the role. Kennedy has secured voluntary agreements with some major food producers to stop using synthetic food dyes. 

During his first trip as secretary, Kennedy in March 2025 traveled to West Virginia to promote the state banning certain food dyes from school lunches, including those that are approved by the FDA, like Yellow No. 5 and No. 6, and Red No. 40.

Berger’s preliminary injunction does not apply to the school food provisions of the law, which took effect in August. 

In a statement, Morrisey said the ruling “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,” the governor said.