West Virginia is poised to become the first state to ban a range of food dyes

Jason Barrett's wife has made an effort to eliminate all artificial food dyes from the food eaten by her family, including her two young children. A couple months ago, she showed him a documentary called "To Dye For" that made him think about making changes beyond just his own family.

A West Virginia state senator, Barrett worked with other state legislators with similar views on food additives to introduce legislation — first to ban a slate of seven dyes and preservatives from school lunches and then to prohibit them from being sold in the state entirely.

Now, just over a month after the bills were introduced, West Virginia is poised to be the first state to ban a group of synthetic dyes and preservatives that critics say cause health problems. The legislation has passed both houses of the state Legislature, and legislators say that Gov. Pat Morrissey will sign it.

"There's becoming a real grassroots movement of folks all across this country who are starting to pay more attention to additives and things that are in our food, especially the food that we feed children," said Barrett, R-Berkeley. "I think that the children in West Virginia deserve to not be poisoned by synthetic food dyes."

The bill would prohibit the sale of seven food dyes — Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2 and Green No. 3 — as well as the preservatives butylated hydroxyanisole and propylparaben, as of Jan. 1 2028. The same products would be banned from school breakfasts and lunches as of Aug. 1 of this year. The bill exempts businesses with less than $5,000 in sales per month from criminal penalties.

The bill has met significant opposition from the food, beverage and candy industries, which say that the legislation will outlaw 60% of the items currently for sale in West Virginia grocery stores. The groups argue that the scientific evidence against food dyes is scant, and that the economic impact to the state will be severe.

"They were quick to act on this, but without any real facts and without any real research," said Stacie Rumenap, spokesperson for Americans for Food and Beverage Choice, a national lobbying group spearheaded by the American Beverage Association. "They were looking to do something very quickly without any evidence to show the why, and not taking into account economic disruption and higher grocery prices."

State delegate Evan Worrell, R-Cabell, who has seven children and one more on the way, also has personal experience with eliminating food dyes in his home, also driven initially by his wife. They notice behavioral changes in their children when they consume synthetic food dyes, he said, such as when his 4- and 9-year-old boys became wild after eating the snacks at church.

Barrett was planning on introducing a bill in West Virginia just to ban food dyes in meals served by schools, similar to a bill passed by California last year.

Worrell and other legislators decided to expand it in the state House to include all products sold in the state — initially doing so just to plant the seed on a statewide ban. "I'll be honest. When we introduced the bill, we introduced it to bring out the opposition, always thinking we would just pass Senator Barrett's school food bill and start there," he said.

When they saw the degree of support from other legislators, they quickly combined the bills into legislation that banned the dyes initially in schools and later in all food and beverage sales.

"The reason that we did this was to speed up the process," he said. "Because we knew opposition would come out."

Indeed, industry groups were late to oppose the bill, and argue that they didn't have a proper opportunity to present evidence to legislators. "This isn't how we legislate in the United States," said Rumenap. "We should have an open dialogue, not just ramming something through in what feels like the middle of the night so nobody really knows what is happening."

Barrett dismisses the claims of industry groups of food unavailability and economic consequences as scare tactics. "Those claims are because they don't want West Virginia to start the domino effect — which I think it will," he said. "I think there will be state legislatures all over our country now passing legislation. You've already started to see it happen — there are over 20 states that have similar bills introduced."

A pair of bills introduced last year in Pennsylvania that would have banned nine chemicals from food sold or manufactured in the state, including six artificial dyes, did not advance in the legislature.

Because the West Virginia ban doesn't take effect until 2028, Barrett believes that food and beverage manufacturers will have plenty of time to reformulate their foods, as they've done to comply with food regulations in Europe. "I think they're all going to be on the shelves — they're just not going to have synthetic food dyes," he said. "If you look at Mountain Dew in the U.K., it's colored with beta carotene. In the U.S., it's colored with yellow No. 5."

Barrett's wife, Summer, shops frequently at Aldi, which eliminated synthetic food dyes from its store-brand products in 2015. He brought a box of Kellogg's Pop-Tarts and a box of Aldi's store brand "toaster tarts" to the Senate Republican caucus to show his fellow Republican senators, noting that not only were changes in production possible to avoid food dyes, but that the "Millvale" brand Aldi version cost more than $2 less.

The Teamsters Local 175 in West Virginia, which represents 60 union beverage workers throughout the state, isn't content to just assume that companies will adapt. Major beverage companies such as Coke and Pepsi have told the union that the bill would negatively impact about 50% of their products, said secretary-treasurer Luke Farley, which will have a direct effect on jobs.

Many of the Teamsters beverage workers are paid by commission, he said, meaning that fewer sales would directly affect their wages, not to mention that he believes that decreased product availability would almost certainly result in layoffs. He also has concerns about the impact in border counties, where people might cross over to Pennsylvania or Ohio to buy their preferred products, along with the rest of their groceries.

"Look, we understand the need and want to be healthier, especially in a state like West Virginia where you have high obesity rates," he said. "But let's not take a sledgehammer to something that could be handled with a scalpel. Isn't there a compromise to put a warning label on the bottle or talk about what we need to do in schools?"

One of those beverage workers, Bobby Catlett, orders for, delivers to and stocks a Kroger and a Walmart near Charleston not only with Coke-brand sodas but also products such as Powerade Fruit Punch (Red No. 40) and Monster Energy Pacific Punch (Red No. 40, Blue No. 1).

"My biggest complaint is, I don't know why West Virginia wants to lead this charge," he said. "If this goes federal, I feel like my company will have to adjust their production. I feel like if West Virginia does this solo, they are not going to do that for the state of West Virginia."

For Worrell, the question of why West Virginia is a simple one. "We are not well in West Virginia. We do not have a healthy state," he said. "I have a big sign in my office that says Make West Virginia Healthy, and that is at the forefront of what we want to do. It requires out-of-the-box thinking."

The food and beverage industry believes that this bill goes too far out of the box, questioning whether there is evidence that the dyes are unhealthy at all. The U.S. Food and Drug Administration banned Red No. 3 dye in January, citing evidence that it causes cancer in lab rats. As for the other dyes, "I think a lot of the opposition's arguments stem from these false claims — whether it's behavior in children or obesity in the general population, there's just no evidence to show that," said Rumenap of the Americans for Food and Beverage Choice. "I'm a mother of three. Show me the evidence. This seems like a solution in search of a problem."

In West Virginia, the campaign against food dyes is supported by many people, especially mothers, who consider themselves part of the Make America Healthy Again movement championed by U.S. Secretary of Health and Human Services Robert F. Kennedy Jr. In a meeting last week at the White House with MAHA moms and Vani Hari, also known as "The Food Babe," Kennedy urged Gov. Morrissey to sign the bill.

Hari testified before the West Virginia legislature about the bill last month, as did the makers of the "To Dye For" documentary.

Abbie Houser, who owns Sweet Abe's Bakeshop in Wheeling, has also started to notice the influence of mothers concerned about food dyes. In the last year, she's gotten requests to make children's birthday party cakes without dyes, she said, and has been experimenting with powdered dyes made with beets and other synthetic dye substitutes.

"Obviously, it would affect me because I do use a lot of food dye products, like in red velvet cake," she said. "But with the alternatives, it won't be as big of an impact as what you would think. I have had to express to people that they will not be getting the same shade of color, or as vibrant a color, but everybody seems to be pretty OK with that."

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