Court issues preliminary injunction blocking West Virginia ban on certified colors

Because the court found that IACM is likely to succeed on its claim that West Virginia HB 2354's certified color ban is unconstitutionally vague, the PI “applies only to the provisions H.B. 2354 enforced by the West Virginia Department of Health and does not apply to the enforcement of [school foods ban] by the West Virginia Board of Education.”  In order for a court to grant a preliminary injunction, the plaintiff must, among other things, demonstrate that it is likely to succeed on the merits and will suffer irreparable harm in the absence of preliminary relief.   Accordingly, the PI provides temporary relief, meaning that IACM must prevail on the merits for the court to issue an order permanently halting enforcement of HB 2354's certified color ban. However, the West Virginia Department of Health cannot enforce the certified color ban after the January 1, 2028 compliance date unless the case is resolved prior to that date and HB 2354 is determined to be constitutional. IACM did not request relief from the restrictions to the school nutrition program that went into effect earlier this year. The PI therefore does not affect the school foods portion of HB 2354, which means that schools in West Virginia are still prohibited from serving meals that contain a certified food color as an ingredient.

More details follow.

Background

In a lawsuit filed against the West Virginia Department of Health Cabinet Secretary, the West Virginia Bureau for Health Interim Commissioner, and members of the West Virginia State Board of Education,  Plaintiff argued that the West Virginia law is unconstitutional because it interferes with the U.S. Food and Drug Administration's (FDA's) food safety authority and interstate commerce and causes economic harm to industry without providing any substantiated or rational basis for classifying the covered additives as unsafe. The complaint specifically alleges that West Virginia HB 2354 (1) violates constitutional equal protection and due process guarantees; and (2) operates an unconstitutional bill of attainder by “singling out for prohibition and criminal sanction the named color additives without providing their manufacturers any opportunity to demonstrate that they are not harmful and thus not worthy of criminal penalties.”² The complaint comes at a time when an increasing number of state legislatures are seeking to regulate the use of specific colors and additives in foods.

As brief background, West Virginia HB 2354 prohibits the sale of any “food, drink, confectionary, or condiment” in the state “[i]f 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,” effective January 1, 2028.³  The law does not apply to entities that sell less than $5,000 a month of food that contain the enumerated substances. Violators of HB 2354's state ban provision are guilty of a misdemeanor and, upon conviction, must be fined no more than $500 or confined in jail no more than one year or both.⁴ The law also prohibits the use of the above-mentioned color additives “as an ingredient in any meal served in a school nutrition program,” as of August 1, 2025.⁵

Overview of the Decision

The court found that IACM is likely to succeed on its claim that HB 2354's state color additives ban is unconstitutionally vague because the law “fails to provide sufficient notice and invites arbitrary enforcement.” The court reasoned that the law provides no notice concerning any additional color additives that are or may be considered poisonous and injurious and that, although the law's failure to define poisonous and injurious is “not sufficient to render a statutory provision vague,” “the inclusion of the named color additives generates uncertainty as to the status of other color additives.” Further, the court found that HB 2354 provides a “nonexclusive” list of color additives that may be deemed poisonous and injurious because the word “including” follows the term “poisonous and injurious” and precedes the enumerated list of color additives.

The court also noted that HB 2354 does not provide criteria for determining whether additional color additives, besides those already named by the law, should be deemed poisonous and injurious, which means that “other color additives could be included without any notice for why or how they are being deemed ‘poisonous and injurious.'” Moreover, although the terms “poisonous” and “injurious” have clear dictionary definitions, the inclusion of FDA-approved color additives “muddies the water and creates confusion as to what substances now constitute ‘poisonous and injurious.'” The court noted that color manufacturers reasonably rely on FDA safety determinations, which makes it imperative for West Virginia to properly define what constitutes poisonous and injurious. Based on this reasoning, the court found that there is no clear standard upon which West Virginia can determine if a color additive is poisonous and injurious, leaving West Virginia “free to arbitrarily designate additional color additives as such.” Plaintiffs would therefore be harmed due to the costs associated with “attempting to comply with a likely vague statute in anticipation of its eventual enforcement,” including pausing development of new color additives.

Equal Protection and Bill of Attainder Claims

The court rejected Plaintiff's Equal Protection claims, finding that legislative history demonstrated there was at least a “a debatable question” on the use of the named color additives and that the West Virginia legislature is permitted to single out certain substances to promote public health and safety.

The court also rejected Plaintiff's bill of attainder arguments. In so doing, the court found that HB 2354 does not single out a particular individual or group, but rather applies to whoever adulterates food or manufactures and/or sells adulterated foods; that the law's criminal enforcement provisions do not constitute legislative punishment because a person must first be convicted before those penalties are imposed; and that “nothing in the legislative history indicates that the legislature enacted H.B. 2354 for the purpose of punishing the manufacturers and users of such color additives.”

Scope of the PI

The order grants the IACM motion for preliminary injunction “to the extent it requests a preliminary injunction and that the West Virginia Department of Health be enjoined from enforcing H.B. 2354.”  The IACM complaint asked the court to “enjoin, preliminarily and permanently, the implementation and enforcement of H.B. 2354 as to the sale of color additives.”  IACM did not include BHA and propylparaben in the original complaint creating ambiguity as to whether the West Virginia Department of Health would try to enforce HB 2354 against products containing propylparaben and BHA. 

Next Steps

West Virginia cannot enforce the certified colors ban while the lawsuit continues.  West Virginia may choose to appeal the decision, or the West Virginia legislature could attempt to modify the legislation in the 2026 session to address the concerns raised by the courts.  We will continue to monitor developments in this case.

Authored by Martin Hahn, Veronica Colas, and Chigozie Akah.