This law is part of a broader national trend toward increased scrutiny of food additives and their potential health risks.

West Virginia recently enacted significant changes under House Bill 2354, which will impact food safety standards, school nutrition programs and businesses involved in food manufacturing and distribution. These changes are designed to protect public health by banning certain food dyes and additives deemed unsafe for consumption. This law is part of a broader national trend toward increased scrutiny of food additives and their potential health risks.

Governor Patrick Morrisey signed HB 2354 into law on March 24, 2025. The law bans dyes contained in a broad range of foods, including breakfast cereals, snack foods, baked goods and candies. Supporters argue that synthetic additives negatively affect children, causing issues such as restlessness, irritability and aggression. Opponents, however, warn that the ban will devastate the local economy and welfare of West Virginians, effectively banning 60 percent of grocery store food items.

Key Provisions of HB 2354

Banning Harmful Food Additives (W. Va. Code § 18-5D-3)

Effective August 1, 2025, West Virginia will prohibit the use of several food dyes and additives in school nutrition programs, including:

• Red No. 3
• Red No. 40
• Yellow No. 5
• Yellow No. 6
• Blue No. 1
• Blue No. 2
• Green No. 3

Key exception: Schools can still sell food containing these banned additives during fundraising events, provided the items are sold off school grounds and at least 30 minutes after the school day ends.

Statewide Ban on Food Products (W. Va. Code § 16-7-2; 7-4)

Effective January 1, 2028, the law will prohibit the manufacture, sale or offering for sale of food products containing the following additives:

• Butylated hydroxyanisole (BHA)
• Propylparaben
• Red No. 3
• Red No. 40
• Yellow No. 5
• Yellow No. 6
• Blue No. 1
• Blue No. 2
• Green No. 3

Penalties for Noncompliance

Businesses found in violation of these provisions may face criminal charges, including:

• Fines up to $500
• Imprisonment for up to one year
• Costs of analyzing adulterated food products
• Forfeiture and destruction of adulterated products

Key exception: The penalties do not apply to individuals who sell less than $5,000 worth of food adulterated with the specified preservatives and dyes per month.

Action Steps for Businesses

• Review product formulations and update labels: Ensure that your products do not contain any of the banned dyes and additives.
• Audit supply chain practices: Adjust your supply chain to comply with the new restrictions.
• Prepare for school compliance: Work with schools to ensure compliance with the August 2025 deadline for school meal programs.

Conclusion

This legislation represents a growing trend of increased attention and scrutiny over the various additives and ingredients contained in food and beverage products. Navigating these changes and remaining apprised on similar legislation in other states may require specialized legal assistance. Regulatory counsel can help ensure compliance with the removal of banned preservatives and dyes from the supply chain, updating product labels and ensuring compliance with the law in substitute products to be sold ahead of the statewide ban taking effect in 2028. Intellectual property counsel can provide guidance on freedom-to-operate in view of possible reformulations and brand management. Litigation counsel can offer strategies to mitigate legal exposure and manage reputational risks. Additionally, businesses may need to consult with employment law counsel if workforce changes are required to meet the new regulatory demands.

For More Information

If you have any questions about this Alert, please contact Christiane Schuman Campbell, Thomas J. Kowalski, Morgan L. Swing, Brandon A. Chan, Ph.D., Jessica Santacroce, any of the attorneys in our Fashion, Retail and Consumer Branded Products Industry Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.