Laws
West Virginia food dye law and the court order
West Virginia passed the broadest state dye law so far, covering both schools and every food sold in the state. One part is in force; the other is on hold in court.
Is this dye or additive banned in your state?
FD&C Red No. 40 in West Virginia, November 5, 2026
Banned in school food; sale ban blocked
| FDA | Allowed by FDA Listed for use in food. FDA asked industry in April 2025 to stop using it voluntarily; its tracker names the end of 2027 as the target. No revocation order. |
| school food | In effect HB 2354 (2025), from August 1, 2025. |
| all food sold | Enacted, enforcement blocked by a court HB 2354 (2025), from January 1, 2028. The federal court barred the West Virginia Department of Health from enforcing HB 2354, finding § 16-7-2(b)(7) likely unconstitutionally vague. |
FD&C Red No. 40, E129, CAS 25956-17-6. School rules cover food served or sold to students, not grocery shelves. Legal status only, not health advice.
All dye and additive rules in West VirginiaHouse Bill 2354, approved on March 24, 2025 as chapter 206 of the Acts of that year, has two parts. The first, in section 18-5D-3A of the Code, removes Blue 1, Blue 2, Green 3, Red 3, Red 40, Yellow 5 and Yellow 6 from meals served under the school nutrition programs; it has applied since August 1, 2025. The second amends section 16-7-2 so that a food containing any of nine substances, those seven dyes plus BHA and propylparaben, is adulterated if sold in West Virginia from January 1, 2028, with small sellers exempt. On December 23, 2025, in International Association of Color Manufacturers v. Singh, the federal court for the Southern District of West Virginia granted a preliminary injunction barring the state health department from enforcing the law, finding a key provision likely unconstitutionally vague. The order states that it does not reach the school rule. The state appealed to the Fourth Circuit.
How long until a state rule starts?
West Virginia, HB 2354 (2025) (all food sold)
Blocked by a court
| Starts | January 1, 2028 |
| Covers | 9 dyes or additives |
| Status today: Enacted, enforcement blocked by a court | |
The federal court barred the West Virginia Department of Health from enforcing HB 2354, finding § 16-7-2(b)(7) likely unconstitutionally vague.
Laws and FDA orders read by Radif Partners · Editorial policy · Method and sources
What the injunction means for shoppers and schools
Until the appeal is decided, the 2028 sale ban cannot be enforced, so a product with Red 40 on a West Virginia store shelf is lawful under state law as well as federal law. Schools are a different matter: the court excluded the school-meal section from its order, so districts must keep serving meals without the seven dyes. A 2026 bill to rewrite the law did not pass. We found no decision of the Fourth Circuit as of November 1, 2026.
Penalties
Selling an adulterated food is a misdemeanor in West Virginia, punishable by a fine of up to $500 for a first offense, but this only becomes relevant if the injunction is lifted.
West Virginia rules on dyes and additives
| Law | Scope | Substances | From | Status today | Enforcement |
|---|---|---|---|---|---|
| HB 2354 (2025) | all food sold | BHA, Propylparaben, Blue 1, Blue 2, Green 3, Red 3, Red 40, Yellow 5 and Yellow 6 | January 1, 2028 | Enacted, enforcement blocked by a court | Misdemeanor: fine up to $500, jail up to one year, or both (§ 16-7-4). |
| HB 2354 (2025) | school food | Red 3, Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2 and Green 3 | August 1, 2025 | In effect | not stated |
Each tracked substance in West Virginia
| Substance | FDA | All food sold | School food | Label |
|---|---|---|---|---|
| Red 40 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Red 3 | FDA ban ordered, not yet in effect | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Yellow 5 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Yellow 6 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Blue 1 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Blue 2 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Green 3 | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | In effect (August 1, 2025) | no |
| Citrus Red 2 | Still allowed; FDA proposed a ban | no | no | no |
| Orange B | Banned nationwide by FDA | no | no | no |
| BVO | Banned nationwide by FDA | no | no | no |
| Potassium bromate | Allowed by FDA | no | no | no |
| Propylparaben | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | no | no |
| Titanium dioxide | Allowed by FDA | no | no | no |
| BHA | Allowed by FDA | Enacted, enforcement blocked by a court (January 1, 2028) | no | no |