Search results for: west virginia

  • A West Virginia federal judge has granted a preliminary injunction to temporarily block enforcement of the state’s ban on seven synthetic color additives, along with BHA and propylparaben. The judge found that West Virginia’s law “fails to give adequate notice of what conduct is prohibited and lacks sufficient standards to prevent arbitrary enforcement.”
  • In October 2025, the International Association of Color Manufacturers (IACM) filed a lawsuit challenging West Virginia’s HB 2354, as we previously blogged. The lawsuit alleged that the ban on the color additives has no scientific basis, ignores safety determinations FDA made when granting the respective color additive petitions, and offers no new evidence that brings the safety of the additives into question.
  • IACM brought the lawsuit on three grounds, alleging that the law:
    • Violates the Equal Protection Clause because it singles out manufacturers and users of the named additives without offering a basis for why the additives must be banned;
    • Is a prohibited bill of attainder because, by naming enumerated color additives, it singles out the manufacturers and users of those color additives; and
    • Is unconstitutionally vague because it leaves the door open for arbitrary enforcement because it does not define “poisonous and injurious” and does not prevent other additives from being deemed as such.
  • The judge disagreed that the law violates the Equal Protection Clause or is a bill of attainder but granted the preliminary injunction on the grounds that the law is unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. According to the judge, the law does not define the term “poisonous or injurious,” and the word “including” following that term renders the list of color additives nonexclusive. The law does not include criteria to guide the determination of which color additives are considered “poisonous or injurious,” meaning that “other color additives could be included without any notice for why or how they are being deemed ‘poisonous or injurious.’” Thus, the law fails to give adequate notice of prohibited conduct and invites arbitrary enforcement.
  • Keller and Heckman will continue to monitor this lawsuit and other developments regarding color additives’ regulatory status.
  • Last week, the International Association of Color Manufacturers (IACM) filed a lawsuit challenging West Virginia’s HB 2354.
  • HB 2354, which was signed into law in March 2025, bans the use of seven synthetic color additives in food products sold in the state (Red 3, Red 40, Yellow 5, Yellow 6, Blue 1, Blue 2, and Green 3) along with BHA and propylparaben. A general ban on their use becomes effective on January 1, 2028, while a ban on the use of the synthetic color additives in school nutrition programs is already in effect as of August 1, 2025. The bill exempts persons who sell less than $5,000 per month of food containing the banned additives.
  • The lawsuit, which asserts claims for relief under the U.S. and West Virginia constitutions, alleges that the ban on the color additives, among other faults, has no scientific basis, ignores the safety determinations that were made when FDA granted the respective color additive petitions, and offers no new evidence that brings into question the safety of the color additives.
  • IACM’s complaint states that IACM has elected not to challenge HB 2354 as to its ban on Red 3 because FDA has already revoked the authorization for Red 3’s use in food (effective Jan. 15, 2027) based on FDA’s interpretation of the Delaney clause of the Federal Food, Drug, and Cosmetic Act (and not a risk to human health).
  • On March 19, 2025, the West Virginia Senate and House sent HB 2354 to the governor for final approval, which proposes banning various food additives and synthetic dyes.
  • The bill would prohibit the sale of any food product in the state that contains butylated hydroxyanisole (BHA), propylparaben, Red No. 3, Red No. 40, Yellow No. 5, Yellow No. 6, Blue No. 1, Blue No. 2, or Green No. 3.  If enacted, the legislation would apply to food products in school nutrition programs beginning August 1, 2025, then extend to all food products in the state on January 1, 2028.
  • While there was some push back arguing that the state should wait for changes to come top down from the U.S. Food and Drug Administration (FDA) and that the ban will cause food prices to go up or limit the competitiveness of the state, the voting pattern shows that the opposition was minimal.  This article by West Virginia Watch stated that Senator Barrett, who spearheaded the effort, feels confident that the Governor will sign HB 2354.
  • The West Virginia bill is the latest state legislative effort to regulate food dyes, following California, Utah, Florida, and Virginia.
  • In recent proposed legislation, Michigan (HB 5603) and West Virginia (HB 4911) have proposed allowing the sale of unpasteurized, raw milk within their respective states.  The Michigan bill is currently stalled in committee, while the West Virginia bill has been approved without the governor’s signature.
  • Currently, federal law prohibits dairies from distributing raw milk across state lines in final package form, and many states have full or partial bans on its sale within their borders.
  • Michigan’s HB 5603 was first introduced on the House floor March 24, 2024.  Under the proposed legislation, unpasteurized, raw milk may be sold to a final consumer or retail establishment in Michigan if the raw milk and raw dairy products comply with specific criteria.  This includes a warning that must be placed on the labels of covered products: “WARNING: unpasteurized milk and dairy products may contain disease-causing microorganisms. Individuals at the highest risk of disease from these microorganisms include newborns and infants; the elderly; pregnant women; individuals taking corticosteroids, antibiotics, or antacids; and individuals with a chronic illness or another condition that weakens immunity.”
  • West Virginia’s HB 4911 legalizes the sale of raw milk as long as the containers are clearly labeled as “unpasteurized raw milk” along with the seller’s name, address, the date of production, and a warning that “Consuming unpasteurized raw milk may increase your risk of foodborne illness, especially for children, elderly, immunocompromised individuals, and persons with certain medical conditions.”  The final version of the law does not include an originally proposed provision that would have made sellers of raw milk immune to lawsuit and liability for claims related to personal injury for actual or alleged act, error or omission that occurred as long as the act was not intentional.  The bill will become law 90 days after the legislature approved it on March 9, 2024.
  • U.S. Secretary of Agriculture Brooke Rollins is continuing to approve waivers that allow states to prohibit certain food items from qualifying under the Supplemental Nutrition Assistance Program (SNAP). In May 2025, we reported that Nebraska received the first-ever waiver that allows the state to restrict the purchase of certain “junk” foods and beverages, such as candy and soda. Five additional states have now received SNAP waiver approvals, including Arkansas, Idaho, Indiana, Iowa, and Utah.
  • Idaho and Indiana restrict the purchase of both soft drinks and candy, while Utah only restricts the purchase of soft drinks. Arkansas—in addition to restricting soft drinks and candy—also restricts the purchase of fruit and vegetable drinks with less than 50% natural juice and “unhealthy drinks.” With the exception of Arkansas whose implementation date is July 1, 2026, SNAP restrictions in other states begin on January 1, 2026.
  • The language of Iowa’s SNAP waiver is unique in that it “restricts all taxable food items as defined by the Iowa Department of Revenue except food producing plants and seeds for food producing plants.” Some of the taxable food items that will face restrictions include candy, chewing gum, carbonated and non-carbonated soft drinks, sweetened naturally or artificially sweetened water, and dried fruit leathers.
  • Several other states, including Colorado, Louisiana, Montana, Texas, and West Virginia, have submitted SNAP waivers to prohibit the purchase of certain food and beverage items and are pending approval. Arizona and Kansas had also introduced legislation to restrict SNAP funding for certain products, but both bills have been vetoed.
  • Keller and Heckman will continue to monitor developments related to SNAP.
  • On May 19, 2025, U.S. Secretary of Agriculture Brooke Rollins signed the first-ever waiver allowing Nebraska to restrict the use of Supplemental Nutrition Assistance Program (SNAP) funds to purchase certain “junk” foods and beverages, such as candy and soda. Beginning in January 2026, SNAP participants in Nebraska will not be able to use the benefits to purchase soda and energy drinks.
  • Previously, SNAP recipients could purchase any groceries except for alcohol, tobacco, hot foods, and personal care products. The waiver is part of the Make America Healthy Again agenda and “seeks to reverse alarming disease trends across the country.”
  • In April, Nebraska Governor Jim Pillen submitted a letter to Secretary Rollins notifying her of the state’s intent to pursue a SNAP waiver. According to Pillen, “[t]here’s absolutely zero reason for taxpayers to be subsidizing purchases of soda and energy drinks. SNAP is about helping families in need get healthy food into their diets, but there is nothing nutritious about the junk we are removing with today’s waiver.”
  • Several other states, including Arkansas, Colorado, Kansas, Indiana, Iowa, and West Virginia, have submitted requests to prohibit SNAP funds from covering certain foods or to allow the use of funds to purchase certain hot foods, such as rotisserie chicken. Many other states have active legislation seeking to restrict SNAP funding for certain products. While USDA has historically rejected waivers to restrict SNAP spending, Rollins supports “tak[ing] junk out of SNAP.”
  • Keller and Heckman will continue to monitor developments related to SNAP.
  • On April 9, 2025, the White House issued a memorandum titled “Directing the Repeal of Unlawful Regulations,” directing agency heads to repeal rules without notice and comment, where doing so is consistent with the “good cause” exception in the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)). The “good cause” exception allows agencies to dispense with notice-and-comment rulemaking when that process would be “impracticable, unnecessary, or contrary to the public interest.”
  • This review-and-repeal effort directs agencies to evaluate existing regulation’s lawfulness under several recent Supreme Court decisions such as Loper Bright Enterprises v. Raimondo and West Virginia v. EPA—decisions which limited the power of federal agencies to promulgate regulations absent explicit congressional authorization.
  • The memorandum is intended to reinforce Executive Order 14219, published on February 19, 2025, which directed the heads of all executive departments and agencies to identify categories of unlawful and potentially unlawful regulations within 60 days and begin plans to repeal them.
  • Following the 60-day review period ordered in Executive Order 14219, agencies are instructed to immediately take steps to effectuate the repeal of any regulation, or the portion of any regulation, that “clearly exceeds the agency’s statutory authority or is otherwise unlawful.”
  • Keller and Heckman will continue to monitor developments related to the repeal of regulations and provide updates on how these changes impact regulated industries.
  • Several states have recently introduced or passed legislation related to raw milk, reflecting a growing interest in unpasteurized milk despite the fact that raw milk can carry harmful bacteria such as Salmonella, E.coli, and Listeria, posing serious health risks. The U.S. Food and Drug Administration (FDA) and the Centers for Disease Control (CDC) strongly advise against consuming raw milk due to these dangers and have implemented regulations to limit its sale. 
  • Despite the long-standing position at both agencies, the new Secretary of the Department of Health and Human Services (HHS) Robert F. Kennedy Jr., has been a vocal advocate for raw milk promoting its benefits and criticizing regulatory restrictions.  His support has brought renewed attention to the raw milk movement, influencing legislative efforts.
    • Arkansas Bill HB 1048: This bill would allow the sale of raw goat milk, sheep milk, and whole milk directly to consumers at the farm, at farmer’s markets, or via delivery by the farm.
    • Utah Bill HB414: This bill has passed the House and is now before the Senate.  This bill establishes enforcement steps for raw milk suspected in foodborne illness outbreaks, aiming to protect consumers.
  • Keller and Heckman will continue to monitor any developments related to the regulation of raw milk.
  • Last month, the U.S. Food and Drug Administration released the findings of a groundbreaking study confirming that pasteurization is effective in killing the bird flu virus in milk and other dairy products.  The study was conducted as part of ongoing efforts to ensure the safety of milk amid growing concerns about the expanding outbreak of H5N1 Highly Pathogenic Avian Influenza (HPAI).
  • The study simulated, for the first time, the exact time and temperature used in commercial milk pasteurization and demonstrated that conditions for pasteurization widely used by producers effectively inactivated the HPAI virus, even in raw milk samples that contained higher than usual concentrations of the virus.  In all 297 samples of milk and dairy products collected for the study, HPAI was inactivated after pasteurization.
  • Currently, federal law states that all milk and milk products in final package form intended for direct human consumption must be pasteurized, though there has been recent state action that would allow unpasteurized milk in the marketplace.  As we previously reported, Michigan (HB 5603) and West Virginia (HB 4911) have proposed allowing the sale of unpasteurized, raw milk within their respective states.  Delaware has also passed legislation (SB 273), since our last reporting, that would legalize the sale of unpasteurized, unprocessed milk directly from dairy producers to consumers.
  • Keller and Heckman will continue to monitor and relay any industry developments.
  • A proposed class action lawsuit filed on February 4 alleged that Poland Spring sparkling water, owned by BlueTriton Brands, Inc., misled consumers with the claim “a twist of lemon” because the water lacked “the amount and type of lemon ingredients expected by plaintiff and consumers” (subscription to Law360 required). As alleged in the complaint, customers expect the lemon flavor to come from lemon oil, lemon extract, or lemon juice, instead of natural flavors.
  • The plaintiff, Timothy Alexander, argued that the claim “a twist of lemon” refers to the “literal twisting of the outer portion of a lemon round,” and would cause a consumer to believe that the water contained actual lemon juice. However, as estimated in the complaint, the water likely only contained approximately 0.1 mL of lemon ingredients.
  • In addition to the “a twist of lemon” claim, the label also declared a characterizing flavor statement, or as referred to in the complaint as a “disclaimer.” Alexander argued that the “disclaimer” (i.e., “naturally flavored spring water with other natural flavors and CO2”) is “used so extensively on labeling that is has become the equivalent of a labeling tic, affixed to a majority of products with added flavoring,” and thus does not inform consumers that the product does not contain an appreciable amount of lemon.
  • The complaint stated that the value of the water purchased by Alexander was materially less than the value represented by BlueTriton, and that more water was sold at higher prices than would have been had the “a twist of lemon” claim not been declared on the label. Alexander seeks to represent customers in Illinois under the state’s customer fraud and deceptive practices law, as well as customers in Iowa, Arizona, Ohio, Alabama, Louisiana, West Virginia, Michigan, Texas, Arkansas, Virginia, and Oklahoma as part of a separate consumer fraud multistate class.
  • Keller and Heckman will continue to monitor and report on the outcome of the Poland Spring lawsuit as well as other labeling claim challenges.