BILL AMENDED — House Health and Human Resources Committee Chairman Evan Worrell said House Bill 2354 would help put West Virginia on a path to healthier eating, though opponents believe it will make food products more expensive. -- Photo Courtesy/WV Legislative Photography

CHARLESTON — After sitting in limbo for nine days, the West Virginia House of Delegates took up the state Senate’s changes to a bill banning certain food dyes and additives, making further amendments but losing supporters who voted for the bill the first time.

The House concurred Thursday morning with Senate amendments to House Bill 2354, banning certain products from food in West Virginia, in a 79-17 vote with four absent or not voting. The bill now heads back to the Senate to concur with the House’s amendment to the bill.

The bill first passed the House on Feb. 28 in a 93-5 vote with two absent or not voting. But Thursday’s vote saw 11 House Republicans flip their votes from yay to nay, with one GOP delegate who was absent for the Feb. 28 vote also voting no.

HB 2354 would amend State Code regarding adulterated food and drugs banning specific food additives and dyes found in processed food products sold in the state, such as red dye No. 3 and yellow dye No. 5, deeming them unsafe. Other additives that would be prohibited include butylated hydroxyanisole, propylparaben, red dye No. 40, yellow dye No. 6, blue dye No. 1, blue dye No. 2, and green dye No. 3.

California has already passed a narrow ban on certain dyes and Politico reports that more than a dozen states are considering similar bans. But House Health and Human Resources Committee Chairman Evan Worrell, R-Cabell, said HB 2354 would be one of the largest bans.

“We have a chance to be the first to do it,” Worrell said. “Lead the nation here…and tell (food manufacturers) enough is enough. We’re done poisoning our children. We’re going to make you stand behind offering those products as you do everywhere else the right way.”

The Senate amended the bill last week to make Jan. 1, 2028, the effective date of the bill. However, restrictions in HB 2354 would prohibit the inclusion of these dyes and additives in meals served in schools as part of nutrition programs beginning Aug. 1. According to the bill, schools would still be able to sell non-compliant items for fundraising purposes if sold off-premises or after school hours.

A House amendment to the bill made Thursday would protect individuals in the state from criminal provisions in the bill as long as they sell less than $5,000 in aggregate food sales per month for products containing the banned food additives and dyes.

“Basically, we want to make sure that Toby and Edith aren’t prosecuted for selling it at a bake sale,” Worrell said.

Under State Code, individuals who knowingly contaminate food items for sale containing the banned food dyes and additives without informing the buyer could be charged with a misdemeanor and face potential fines up to $500, spend up to one year in prison or both, while also covering the costs of analyzing the adulterated substance.

The U.S. Food and Drug Administration has already banned red dye No. 3 in January, ordering its removal from food products by Jan. 15, 2027, and from ingested drugs by Jan. 18, 2028. This comes after studies showing a link to cancer after tests on male mice, though it was unclear whether there was a human link to increased cancer rates. A 2021 California Environmental Protection Agency review of food dyes and additives found links between certain dyes and behavior issues in children.

“The body of evidence from human studies indicates that synthetic food dyes are associated with adverse neurobehavioral outcomes in children, and that children vary in their sensitivity to synthetic food dyes,” according to the report. “…Evidence from epidemiology, animal neurotoxicology, and mechanistic toxicology, taken together, provide support that FD and C batch-certified synthetic food dyes can impact neurobehavior in some children.”

But lobbyists for food and beverage manufacturers argue that HB 2354 is a more expansive ban on food dyes and additives than even European countries have in place. They also argue that replacing food products on the market now with products without the dyes and additives would make food products more expensive and less available, though a representative for Americans for Food and Beverage Choice provided no evidence.

“Nobody knows the full extent to which West Virginia’s food manufacturers, retailers, and transportation companies will be impacted because no economic analysis has been conducted,” AFBC spokesperson Stacie Rumenap said in a statement Wednesday. “We call on Gov. (Patrick) Morrisey to veto this misguided legislation because we won’t make West Virginians healthier by putting people out of work, increasing food prices, and emptying grocery store shelves.”

Several lawmakers spoke out against the bill, calling concerns raised by supporters of the ban fear-mongering and saying the bill was anti-free market.

“None of the ingredients and the items that are banned here have been disallowed or banned by the Food and Drug Administration,” said Del. Marty Gearheart, R-Mercer. “We’ve heard a variety of references to there being poison or a variety of things like that and that’s not necessarily true. The Food and Drug Administration does not consider them to be poison.”

“The last time this bill came up I voted no. Today I’m another hard no, but for a different reason,” said Del. Chris Anders, R-Berkeley. “I’m worried that once the camel’s nose gets under the tent and we get on the slippery slope of banning things, before long what are we banning next? Who knows. These dyes may be bad. They probably are, I don’t know. But in my opinion, as long as the ingredients are listed on the label, a free and independent people should be able to make that choice for themselves.”

Supporters of HB 2354 believe phasing out the use of certain food dyes and additives will lead to a healthier population and address some of the health care issues facing children.

“I know when I first started reading about these things and getting a better understanding of elimination diets and what foods we should and shouldn’t consume, I really thought this was just some conspiracy theory,” said Del. Adam Burkhammer, R-Lewis. “We have a problem with rising chronic illness. And why is that? What has changed over the last 50 years? I believe it is the food that we are consuming. And I believe synthetic dyes play a major role in that.”

“These industries that produce these have ways to color the food so they’ll be attractive,” said Del. Keith Marple, R-Harrison. “So, I urge…approval of this bill. Save these children’s lives and protect them from diseases and bad health down the road.”

Robert F. Kennedy Jr., the cabinet secretary for the U.S. Department of Health and Human Services, had a meeting with advocates of the Make America Healthy Again (MAHA) movement Wednesday, where he was asked about HB 2354, urging Morrisey to sign the bill once it arrives on his desk.

“Governor Morrisey is a great person who cares deeply about this issue, but I would advise people to call him up and encourage him to sign that legislation,” Kennedy said when asked by Vani Hari, best-selling author of the Food Babe series.

Hari posted the exchange on her X account.

According to Politico, Kennedy had a meeting with major food and beverage manufacturers earlier this week urging them to phase out certain food dyes and additives, or he would use HHS – through its own authority or with congressional authorization – to force those companies to stop using the food dyes and additives.