Food Fight: How West Virginia Banned Food Dyes

On March 24, 2025, West Virginia became the first state in the U.S. to enact a broad statewide ban on several synthetic food dyes after Governor Patrick Morrisey signed HB 2354. While California and Virginia were the first to pass bans on synthetic food dyes in public schools, HB 2354 goes further, adding a ban on certain dyes and preservatives from food products sold in the state beginning in 2028.

“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,” said Governor Morrisey in a statement. “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.”

Despite passing with overwhelming support in both houses of the state legislature, the law received pushback from industry groups. The International Association of Color Manufacturers (IACM) argued against the bill, saying that it could make healthy foods less appealing and place undue burdens on the West Virginia school system. In October, the IACM sued the state.

“To protect ingredient manufacturers and food companies, we are asking the U.S. District Court to immediately strike down West Virginia's flawed ban. The statute arbitrarily and irrationally targets color additives no U.S. agency – state or federal – nor any court has ever found to be unsafe,” said John H. Cox, IACM general counsel.

To understand how HB 2354 came to pass and where the state's synthetic dye policy may go next, 3E spoke with State Delegate Adam Burkhammer, the lead sponsor of the bill. This article is the second in a series looking at the science behind synthetic food dyes, as well as how that science is being translated into state legislation.

From Pantry to People's House

For Burkhammer, the decision to introduce legislation to restrict synthetic food dyes began at home. He said he became interested in the issue after seeing national attention around chemicals in food, particularly around food dyes. When Burkhammer and his wife then decided to remove food dyes from their household, they noticed what he described as positive behavioral changes in their son.

“What I would call conspiracy theory actually became reality right in our own home. And so then my interest grew even more, and I proposed the legislation to start the conversation,” said Burkhammer.

In developing the measure, Burkhammer said that lawmakers looked to actions already taken abroad and in other states. He said Europe has already moved away from many synthetic dyes, and many companies are already selling reformulated versions of major products in other markets. He also pointed to California's food additive legislation and broader discussion in states including Oklahoma and Michigan. Oklahoma, he said, had considered an even broader approach that included not only synthetic dyes but other chemicals as well.

“Whether it was M&M's or Mountain Dew or whatever your favorite snack is, [it has] already been reformulated and sold in Canada or in Europe,” said Burkhammer. “It proved to us that we could do it, that we wouldn't have to reinvent the wheel.”

The first phase of the law has already taken effect, with covered dyes barred from meals served through school nutrition programs as of August 1, 2025. In response to concerns about schools being burdened by the legislation, Burkhammer said he had not heard of any issues with implementing the bans. Some schools, he said, were already moving in that direction before the law passed.

“We worked with our state department of education to ensure that we weren’t creating a problem for them, and I’m not aware of any problems that they’ve had with contracting vendors or finding adequate sources for food,” said Burkhammer.

Law Meets Legal Barricade

While the ban on food dyes in schools is in full effect, the broader statewide sales restrictions are on hold. The law would treat food, drink, confectionery, or condiments containing the listed additives as adulterated beginning January 1, 2028, effectively barring their broader sale in the state. However, the lawsuit from the IACM has thrown a wrench into that plan.

On December 23, 2025, U.S. District Judge Irene Berger granted the IACM's request for a preliminary injunction against the West Virginia Department of Health (DOH). Berger rejected the IACM's arguments that the law was likely to violate equal protection or amount to an unconstitutional bill of attainder, but found the group was likely to succeed with its claim that the DOH-enforced provisions are unconstitutionally vague.

HB 2354 lists specific additives after using the word “including,” which the court interpreted as making the list nonexclusive. Also, the statute does not define certain key terms such as “poisonous and injurious” or provide criteria for identifying additional substances that might fall under that label. The IACM argued that this could allow the DOH to “arbitrarily include additional color additives as 'poisonous and injurious' without any criteria guiding its determination.” The court agreed, saying that manufacturers lack notice of what conduct is prohibited and the DOH lacks clear standards for enforcement.

The court also found IACM members would likely suffer irreparable harm absent an injunction. Berger said manufacturers face uncertainty over whether to overhaul products and manufacturing infrastructure to comply with a law that may ultimately be struck down. Berger concluded that the balance of equities and public interest favored preserving the status quo while the litigation continues.

However, there is an avenue around the litigation. West Virginia lawmakers have the option to pass a new law that fixes the issues with HB 2354. On January 28, 2026, House Health and Human Resources Chair Evan Worrell sought to do just that, introducing HB 4852, which would have clearly defined “poisonous or injurious,” addressing one of the main concerns with the original ban. The bill passed the House but stalled in the Senate, where it was referred to the Rules Committee on second reading after being reported with amendments.

What Comes Next?

While the broader statewide restrictions are on hold, Burkhammer still views the law as a win and is already looking to another target. He said his next area of interest is removing synthetic dyes from pharmaceutical products, though that effort has proven more complicated than food reformulation.

“I proposed the legislation and thought it would be a little easier than it was,” he said, “but understood there were some different challenges dealing with pharmaceuticals that we didn't encounter with food.”

He said changing a drug formulation that includes a synthetic dye could require additional FDA review, making the process longer and more expensive than removing dyes from food products. Still, he said he plans to continue exploring the issue.

“If we recognize that they're not good for food, then they're not good for our pharmaceuticals either,” he said.

The pharmaceutical proposal shows how quickly the food dye debate can spill into other regulated sectors, but it also highlights the practical limits lawmakers may face as they try to move from food policy into products governed more directly by federal approvals. In West Virginia, the first phase of the dye restrictions is already in effect. The next phase remains unsettled.