Search results for: west virginia

  • On March 14, 2026, West Virginia passed Senate Bill 44, updating the state’s cottage food laws. The bill will allow citizens to obtain a “potentially hazardous cottage food vendor permit,” enabling them to sell these foods without a food establishment permit.
  • Potentially hazardous foods are defined as requiring “time/temperature control or other protocols for safety to limit pathogenic microorganisms or toxin formation.”  Products containing meat, poultry, seafood, or Grade A dairy are still excluded from the law. An applicant for a potentially hazardous cottage food vendor permit may still be subject to conditions like inspections to obtain the permit.
  • The enacted law is significantly pared down from the introduced bill, which had stricter labeling requirements and would have allowed citizens to sell certain meat, poultry, and dairy products. The law will go into effect on June 12, 2026.
  • Keller & Heckman will continue to monitor and report on state food law developments.
  • 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.
  • In June the U.S. District Court for the District of Columbia vacated five state Supplemental Nutrition Assistance Program (SNAP) waivers granted by USDA. The waivers permitted states to exclude certain foods deemed to be unhealthy from the scope of their SNAP programs, which the district court held exceeded USDA’s legal authority.
  • On August 21, 2026, USDA filed an appeal of the decision with the U.S. Court of Appeals for the District of Columbia. The parties have not yet briefed the issues. 
  • The June district court decision only vacated the waivers granted to Colorado, Iowa, Nebraska, Tennessee, and West Virginia, but the decision cast doubt on the legality of similar waivers granted to other states.
  • The target implementation dates for the South Carolina and North Dakota SNAP waivers were August 31, 2026, and September 1, 2026, respectively. However, it has been reported that USDA has asked these states to delay implementation of the waivers until November 1, 2026, during which time USDA plans to publish federal register notices regarding the waivers and consider public comment.
  • Many SNAP waivers are already in effect. Indeed, the Arkansas SNAP waiver went into effect on July 1, 2026, only 9 days after the court ruling. State officials maintained that the court ruling does not apply to the Arkansas waiver.
  • On June 25, 2026, the U.S. House Oversight Committee held a hearing on “Combating Waste, Fraud, and Abuse in SNAP,” where House Republicans questioned the alleged influence of the food and beverage industry on the nutritional policies under the Supplemental Nutrition Assistance Program (SNAP).
  • SNAP is the federal government’s anti-hunger program that serves more than 40 million low-income Americans in providing electronic benefits that can be used like cash to purchase food. Under SNAP, all foods for human consumption, except alcoholic beverages and hot foods prepared for immediate consumption are eligible under federal law.
  • During the hearing, Committee Chair Tim Burchett (R-Tenn.) raised questions about SNAP, stating that while “every SNAP dollar is intended to help feed eligible individuals in need… that’s not where every dollar goes.” House Republicans also argued that SNAP benefits were improperly paid out by states and that the program has experienced different types of fraud such as SNAP card skimming where fraudsters drain the benefits of legitimate program participants or SNAP trafficking where some retailers allow beneficiaries to trade electronic benefits transfer (EBT) cards for cash which is then used to purchase non-allowable goods such as cigarettes or drugs.
  • House Republicans also raised concerns regarding the ability of SNAP recipients to purchase sugar-sweetened drinks through the program, claiming that current SNAP rules are written to encourage consumption of unhealthy processed and packaged foods rather than healthy fresh foods. As we have previously reported, the Trump administration, through the “Make America Healthy Again” initiative, has been encouraging states to apply for waivers that allow the restriction of soda purchases with SNAP dollars. So far, 23 states have approved waivers to restrict the purchase of “unhealthy” foods such as soda, candy, and energy drinks, but waivers in Colorado, Iowa, Nebraska, Tennessee, and West Virginia have been vacated.
  • Keller and Heckman will continue to monitor developments related to SNAP.
  • On June 22, 2026, the United States District Court for the District of Columbia  vacated Supplemental Nutrition Assistance Program (SNAP) waivers that USDA had granted to Colorado, Iowa, Nebraska, Tennessee, and West Virginia. The waivers had permitted the states to exclude certain foods deemed to be unhealthy such as soft drinks and candy from eligibility for purchase under the SNAP program.
  • SNAP provides federal funds to low-income households and is administered by USDA and state agencies. The uniform eligibility standards are determined at the federal level. All foods for human consumption except alcoholic beverages and hot foods prepared for immediate consumption are eligible under federal law. (See 7 USC 2012(k) definition of “food” and 7 CFR 271.2 definition of “eligible food”).
  • The Court held that USDA’s waivers improperly waived the statutory definition of “food.” Furthermore, the Court held that USDA improperly sidestepped notice requirements by asserting, without support, that the waivers would not have a significant impact on the public.  
  • The ruling only addressed the five state waivers that were challenged by Plaintiffs. However, USDA has granted eighteen similar waivers, and the Court’s reasoning seems equally applicable to them.
  • This holding is a snag for the Make America Healthy Again MAHA movement, which has sought to allow states to restrict “unhealthy items” from purchase with SNAP benefits.
  • Keller & Heckman will continue to monitor USDA developments.
  • On January 1, 2026, major restrictions to the Supplemental Nutrition Assistance Program (SNAP) went into effect in Indiana, Iowa, Nebraska, Utah, and West Virginia.  These five states were granted waivers from the U.S. Department of Agriculture (USDA) to restrict what foods can be purchased with the federal food aid benefits, such as candy and soda.  Similar restrictions are set to take effect later this year in at least ten other states, though the types of restricted products differ by jurisdiction.
  • On December 30, 2025, USDA published a policy memo that clarified compliance requirements for retailers serving SNAP customers, reiterating that retailers have a 90-day grace period to comply with a state’s waiver once it is effective.  After the grace period, noncompliant retailers will receive a warning letter triggering a 30-day compliance window, after which noncompliance could result in a loss of the ability for the retailer to accept SNAP payments.
  • However, US grocers are wary of USDA’s enforcement plan.  The National Grocers Association (NGA) and National Association of Convenience Stores (NACS) sent a letter to USDA’s Food and Nutrition Service (FNS), requesting additional clarification on the policy memo and urging USDA “allow for a reasonable margin of error and to ensure that inadvertent, minor mistakes, such as those resulting from labeling changes, seasonal products, or products that fall within ambiguous or overlapping category definitions, do not trigger punitive actions.”
  • The letter warns that the agency has failed to fully consider the complexities retailers face in complying with the new regulations.  The letter requests a six-month period between corrective guidance and formal warnings to give retailers time to fix any outstanding issues, as well as additional guidance regarding Universal Product Code (UPC) lists and definitions.
  • Keller and Heckman will continue to monitor developments related to SNAP.
  • 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.