photo by: W.Va. Legislative Photography

House Health and Human Resources Committee Chairman Evan Worrell, R-Cabell said House Bill 2354 would help put West Virginia on a path to healthier eating, though opponents believe it will make food more expensive.

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.

The U.S. Food and Drug Administration 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.

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.

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.”