America’s food dye ban is being challenged in West Virginia as a judge struck down provisions of the law
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The movement “Make America Healthy Again” (MAHA) hit the ground running in 2025 – pushing for a wave of health policy changes across the country, especially regarding food and nutrition. Now fans are vowing that one court delay won’t hold them back.
A West Virginia judge temporarily halted the implementation of parts of HB 2354 – a state law banning certain food dyes and preservatives – during the holiday week, on December 23. That prompted a swift backlash from state leaders and advocates who say the battle is intensifying.
In her decision, Judge Irene Berger – an appointee of former President Obama – said the law is “unconstitutionally vague because it fails to provide adequate notice and invites abuse.”
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He added that the law does not specify that the West Virginia Department of Health must determine that color additives beyond those specifically listed are “toxic and harmful.”
Berger was appointed in 2009 by Obama to serve as a US district judge for the Southern District of West Virginia.
A West Virginia judge appointed by former President Barack Obama has temporarily halted the Make America Healthy Again food dye ban, calling the law “unconstitutionally vague” and setting back the health movement. (Nathan Posner/Anadolu via Getty Images)
West Virginia’s House Bill 2354, signed by Gov. Patrick Morrisey, aims to phase out certain artificial dyes.
As of Aug. 1 of this year, seven dyes are banned from school lunches – and from Jan. 1, 2028, the same dyes, along with two preservatives, will be banned from food products sold nationwide.
The judge’s new ruling doesn’t apply to school meal plans — so the school lunch portion remains on the road even as the legal battle continues.
PEPSICO WILL REMOVE POPULAR INGREDIENTS BY THE END OF 2025.
Red Dye No. 3, Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2 and Green Dye No.
Similar food dyes, as well as the preservatives butylated hydroxyanisole and propylparaben, will be banned from all food products sold in the state from 2028.
West Virginia’s food dye ban is “unconstitutionally vague because it fails to provide adequate notice and invites arbitrary enforcement,” the judge said. Others strongly disagree. (Stock)
Gov. Morrisey, a Republican, issued a statement criticizing the decision as an aberration, calling it “premature and wrongly decided.”
“West Virginia will continue to protect its mandate to protect the health and welfare of our citizens, especially children,” he said in a statement. “We are reviewing our legal options and will continue to move forward with our efforts to remove hazardous foods.”
Morrisey told Fox News Digital in an interview that “West Virginia has set the national standard when it comes to protecting children from harmful components in food.”
“Since we took action, other states have moved forward and manufacturers have started to change formulas because they see where this is going,” said Morrisey.
“We are reviewing our legal options and will continue to move forward with our efforts to get rid of dangerous foods,” Gov. Patrick Morrisey said in response to the judge’s decision. (Andrew Harnik/Getty Images)
“Children who consume these dyes in large quantities, day after day, during critical stages of development, face a greater risk of chronic diseases,” he added. “West Virginia took action because protecting the health of children should not be optional, and we are proud to lead this effort.”
Red dye gives food a bright cherry red color. It has been linked to behavioral problems in children, and non-human studies have linked the dye to cancer, according to the Cleveland Clinic.
Robert F. Kennedy Jr., the secretary of Health and Human Services, has made removing artificial dyes from the American diet one of his top priorities while serving as a member of President Donald Trump’s Cabinet.
“Artificial food dyes provide zero nutritional value.”
During his first trip as America’s top health official in March, Kennedy spoke in Martinsburg and Gov. Morrisey, who said his state ban program and the Democrat scion’s choice to visit the area first show that the “MAHA” movement is “starting right here in West Virginia.”
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The debate over artificial dyes has become a flashpoint for MAHA supporters. Many see the legal challenge as evidence that the movement is beginning to hit real resistance. They see it as a reason to back down hard, rather than back down.
Liana Werner-Gray, nutritionist and author of “The Earth Diet,” told Fox News Digital that “artificial food dyes provide zero nutritional value.”
The Australian said the European Union (EU) requires warning labels on products containing a few common artificial dyes “because of the links to activity and attention effects on children.”
“I know who will win – because there is nothing stronger than mothers protecting their children,” said the MAHA lawyer. (Fox News Digital)
Werner-Gray added that “from a preventive health perspective, eliminating unnecessary supplements is a direct way to reduce avoidable risks.”
He noted that command or not, one bright spot is that the conversation has changed.
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“Parents ask why behavioral and sensory ingredients are still common in children’s food, and that question doesn’t go away,” she said. “They want it to go, they want us to go with it, but we won’t.”
Vani Hari, better known as “Food Kid,” told Fox News Digital that “the justice system will see the power of the MAHA organization.”
“There is nothing more powerful than mothers protecting their children.”
“I know who will win – because there is nothing stronger than mothers protecting their children,” said Hari, who is based in North Carolina.
The lawsuit was filed by the International Association of Color Manufacturers, a K Street organization that alleged the West Virginia bill was causing economic harm to its member companies.
“This law unfairly and irrationally targets color additives that do not exist in the US agency – state or federal – and no court has ever found it unsafe,” the IACM said in a statement announcing its case, adding that the ban was not “scientifically proven.”
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The governor of West Virginia, meanwhile, said the Obama-appointed judge’s decision was legally flawed. Morrisey said he believed the decision would be overturned.
California, Virginia, Utah and Arizona have sought to enact similar bans focused on school lunches.
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Fox News Digital’s Alec Schemmel and Charles Creitz contributed reporting.
