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Food and beverage manufacturers will need to reformulate products that contain synthetic dyes by Jan. 1, 2028, if they want to sell them in West Virginia.
West Virginia became the first state in the US this week to ban seven synthetic dyes in all food and beverages sold in the state. The ban also targets two food preservatives—butylated hydroxyanisole and propyl paraben—making it the strongest food additive law in the country.
Consumer and industry groups say West Virginia’s action is part of a growing trend among states because of a lack of federal food safety oversight. More than 20 states are considering legislation aimed at protecting children from dyes and other chemicals added to food. West Virginia’s ban goes into effect on Aug. 1 this year for food served to children in West Virginia public schools and on Jan. 1, 2028, for all food sold in the state.
California led the way in 2023 with a law banning four chemicals—brominated vegetable oil, potassium bromate, propylparaben, and Red No. 3 dye—in food products sold in that state, effective Jan. 1, 2027. A year later, California banned six synthetic food dyes in food provided by public schools in the state, effective Dec. 31, 2027. West Virginia is the first state to take the measure a step further and ban the dyes in all food sold in the state.
“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 [MAHA] mission,” Gov. Patrick Morrisey (R) said 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.” Morrisey signed the legislation (HB 2354) into law on Monday.
Concerns over health risks associated with synthetic food dyes bubbled up in 2021 following a reassessment by the California Environmental Protection Agency that linked consumption of the chemicals to potential neurobehavioral effects in some children. It is still unclear why some children are affected by the dyes and others are not.
“This was a movement that started with California a couple years ago moving to ban these chemicals and dyes” in food, says Brian Ronholm, director of food policy in the advocacy division of Consumer Reports. “And it just so happens that this was an important priority for the MAHA movement,” he says, which is being led by US Department of Health and Human Services (HHS) secretary Robert F. Kennedy Jr. “So you had this convergence of forces, not necessarily working together, but converging to push this issue along,” Ronholm says. Now many states are trying to address food chemicals in a meaningful way, he notes.
Synthetic dyes brighten the color of food and drinks, making them more appealing, but they provide no nutritional value. The chemicals are pervasive in the US food supply.
Industry groups claim that West Virginia’s law will have profound economic impacts. “West Virginia families will face higher food prices and a scarcity of available products in stores because this law effectively outlaws 60% of grocery store food items,” Kevin Keane, president and CEO of the American Beverage Association, says in a statement. “Many good jobs will be lost. Businesses will close.”
Consumer and industry groups say they want the US Food and Drug Administration (FDA) to take the lead on regulating chemicals in food, not the states. “It’s imperative that we maintain a trusted and credible process for evaluating ingredients that is based on objective, rigorous science and a risk-based approach led by HHS and qualified experts at the FDA,” John Hewitt, senior vice president of state affairs at Consumer Brands Association, an industry group, says in an emailed statement.
“FDA should be the ones regulating these products because states have better things to do with their time,” says Jensen Jose, regulatory counsel for the Center for Science in the Public Interest (CSPI). “We’ve battled in court, we've done petitions, we went to Congress. Some of our partner organizations have held rallies. We tried every avenue” to get the FDA to act, Jose says. Having no luck at the federal level, the group resorted to working with states like California and New York on bills to ban synthetic dyes in food served in public schools, he says.
Synthetic food dyes are “just an example of a larger problem at the FDA,” Jose says. “Dye, preservative, whatever chemical it is, consumers just want to know that FDA has looked at it and has done a vigorous assessment of whether it is actually safe,” he says. But in most cases, the FDA has not conducted those assessments, and when it has, they were done decades ago, he notes.
There needs to be a strong federal oversight system for food chemicals and dyes, but that just doesn't exist right now at the FDA.
Brian Ronholm, Director of food policy, Consumer Reports
“There needs to be a strong federal oversight system for food chemicals and dyes, but that just doesn't exist right now at the FDA,” Ronholm at Consumer Reports says in agreement. “So in the absence of that, a lot of states are trying to come in and fill that vacuum.”
In the past few months, concerns about dyes and other chemicals in food spread like wildfire to all these various states, he says. “There's well over 20 states that have some legislation pending addressing synthetic food dyes and food chemical additives,” he says.
In an emailed statement, the FDA says that “under Secretary Kennedy’s leadership, the FDA is committed to promoting radical transparency to make sure all Americans know what is in their food." The agency did not elaborate on how it will increase oversight of food chemicals in response to the flurry of state actions.
With this many states taking action against dyes and against other chemicals, we will get national reformulation.
Jensen Jose, General counsel, Center for Science in the Public Interest
Even though a state-by-state approach is not the preferred way of getting harmful chemicals out of food, “with this many states taking action against dyes and against other chemicals, we will get national reformulation,” Jose says. And “in the end, that is the goal,” he says.
Chemical & Engineering News
ISSN 0009-2347
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