This article originally appeared on the Daily Caller News Foundation and was republished with permission.
Guest post by Christine Sellers
A federal judge granted on Tuesday a preliminary injunction order that would prevent the enforcement of parts of West Virginia’s H.B. 2354, which takes aim at artificial food dyes.
U.S. District Judge Irene Berger of the Southern District of West Virginia entered the preliminary injunction order Tuesday, according to WV Metro News. According to the order, the International Association of Color Manufacturers (IACM) sought to prevent the enforcement of West Virginia’s H.B. 2354, as it amended Section 16-7-2(b)(7) to include seven color additives that are “poisonous and injurious” as ingredients or substances.
The seven color additives named are 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.
H.B. 2354 also added a provision, Section 18-5D-3A, prohibiting these color additives “as an ingredient in any meal served in a school nutrition program,” with the exception of school fundraising events on or away from campus occurring “at least one half-hour after the end of the school day,” according to the order.
The IACM argued H.B. 2354 violates the Equal Protection Clause by singling out manufacturers and fails a rational basis review by not providing any factual findings stating why the color additives named in Section 16-7-2(b)(7) are unsafe, according to the same order. The IACM also said H.B. 2354 is “unconstitutionally vague” by not defining “poisonous and injurious,” and leaves the door open for “arbitrary enforcement.”
In her opinion, Berger wrote that the state must provide clearer guidance on what constitutes harmful or poisonous color additives, WV Metro News reported. The case will undergo further scrutiny in court, but until a resolution is reached, the West Virginia Department of Health is prohibited from enforcing a ban. A full ban was not set to go into effect until 2028, according to the outlet.
Republican West Virginia Gov. Patrick Morrissey signed H.B. 2354 into law in March 2025.
“West Virginia ranks at the bottom of many public health metrics, which is why there’s no better place to lead the Make America Healthy Again mission. By eliminating harmful chemicals from our food, we’re taking steps toward improving the health of our residents and protecting our children from significant long-term health and learning challenges,” Morrissey said at the time.
In April 2025, Health and Human Services (HHS) Secretary Robert F. Kennedy, Jr. announced a series of measures to eliminate petroleum-based synthetic dyes from the U.S. food supply. Kennedy said he wanted to eliminate FD&C Green No. 3, FD&C Red No. 40, FD&C Yellow No. 5, FD&C Yellow No. 6, FD&C Blue No. 1 and FD&C Blue No. 2 from the food supply by the end of 2026.
Copyright 2025 Daily Caller News Foundation
The vagueness challenge is interesting here because it exposes a real tension in public health policy. On one hand, West Virginia's trying to take a proactive stance on questionable additives that europe already bans, but on the other hand, the law doesn't define what makes something 'poisonous and injurious' which leaves enforcement pretty wide open. I worked on similar regulatory issues before and the lack of clear standards always gets exploited. The rational basis failure might be the bigger issue tho since they didnt provide evidence showing these specific dyes cause harm under actual use conditions.