How a ban on food dye in West Virginia has forged an unlikely alliance

A West Virginia law signed this week bans synthetic dyes and preservatives in food – a first-in-the-nation consumer protection led by Republicans in the face of vociferous industry opposition.

West Virginia’s law is one of dozens of bills introduced across the country, as Republican state lawmakers get on board with one of the most powerful forces to emerge from the 2024 presidential campaign – the movement to “make America healthy again” or Maha.

The result has been an explosive growth in proposed legislation to ban synthetic dyes, preservatives and chemicals in food packaging – chemicals that consumer advocates have railed against, in some cases, for decades.

“There’s a growing bipartisan interest to ban this, and also a bipartisan frustration with how the [Food and Drug Administration] is working,” said Jensen Jose, regulatory counsel for the non-profit group Center for Science in the Public Interest (CSPI).

Related: ‘The goal is to disassemble public health’: experts warn against US turn to vaccine skepticism

“You’re seeing more and more states looking into banning these chemicals,” Jose said, adding the tidal wave of new legislation was “unprecedented”. West Virginia’s new law owes a debt to California, advocates said, which banned some of the same dyes from school meals in 2024. The Biden administration followed in the waning days of the administration by banning Red Dye No 3.

However, the new law also illustrates a tenuous alliance between science-based consumer advocates, who have historically received sympathy left-of-center, and state Republicans, whose party has a long track record of science denialism.

The figurehead of this movement is Trump’s new health secretary, Robert F Kennedy Jr, who for nearly a decade was the nation’s leading vaccine skeptic – beliefs he has continued to lean into at the Department of Health and Human Services (HHS). The same groups that railed against synthetic dyes came out against Kennedy’s nomination – one calling Kennedy a “revenge prank nomination”.

In his short tenure, Kennedy has already underplayed the value of vaccines against measles while promoting potentially harmful alternative remedies, proposed a 10,000-person cut to the department’s staff and appears poised to undermine mRNA technology, an intervention that is considered the silver lining of the Covid-19 pandemic.

The Trump administration’s aggressive cuts led an accomplished government regulator, the FDA’s food safety chief, Jim Jones, to resign after “indiscriminate” layoffs made his work impossible.

“The elephant in the room is RFK,” Jose said, referring to Kennedy. “We are worried the administration and Congress are not going to follow the science.”

West Virginia’s law will ban Red Dye No 3, Red Dye No 40, Yellow Dye No 5, Yellow Dye No 6, Blue Dye No 1, Blue Dye No 2, Green Dye No 3 and the preservatives butylated hydroxyanisole and propylparaben from school foods beginning this August, and from all foods sold in the state in 2028.

“West Virginia ranks at the bottom of many public health metrics, which is why there’s no better place to lead the make America healthy again mission,” Patrick Morrisey said, signing the bill on Monday, and thanking Trump and Kennedy.

The law came in the face of fierce opposition, as lobbyists issued apocalyptic predictions about the future of food in West Virginia.

“West Virginia families will face higher food prices and a scarcity of available products in stores because this law effectively outlaws 60% of grocery store food items,” said Kevin Keane, the CEO of American Beverage Association, a lobbying group for non-alcoholic sodas, juices and ready-to-drink teas.

“West Virginians will be left with fewer choices because of what politicians in Charleston decided without any sound science behind them,” said Keane. “Many good jobs will be lost. Businesses will close.”

By contrast, consumer advocates, and now many lawmakers, point to inaction at the federal level as the reason new state-based bans are needed. The heart of their grievance is the Food and Drug Administration’s “generally recognized as safe” or GRAS designation, a regulation advocates call a “loophole”.

GRAS was designed by Congress in 1958 to allow food manufacturers to use widely known ingredients without scientific review – Jose uses the examples of beetroot juice, vinegar and salt. But over time, the industry began certifying more and more ingredients through this pathway. In part, that is because the FDA’s reviews could be incredibly slow.

Consumer advocates argue Congress has underfunded the agency’s food review budget. By contrast, FDA’s drug and medical device reviews are funded by user fees from companies that apply for approval – not just Congress. Ingredient review was further weakened by 1997 guidance that did not require food companies to notify the FDA that they had determined an ingredient was safe.

Kennedy announced in March that the administration would review whether to require food companies to notify the department of GRAS determinations.

“The ‘generally recognized as safe’ loophole has swallowed the law,” said Scott Faber, senior vice-president of government affairs at Environmental Working Group, a non-profit that has worked to get laws like West Virginia’s passed. “Ninety-nine per cent of new chemicals are reviewed by the chemical companies, and guess what? They’re always safe,” said Faber. “Perhaps 1% are thoroughly reviewed by the FDA.”

Critics of the GRAS system point to the example of tara flour – a plant-based protein that sickened hundreds of people in 2022 when it was included in meal kit boxes delivered by Daily Harvest. Some customers reported liver and gall bladder problems and even initiated lawsuits.

The FDA only responded two years later, in 2024, when it said the ingredient was not generally recognized as safe and therefore an “unapproved” additive. However, without people getting acutely ill, experts say, ingredients can persist in the food system for years, causing chronic diseases such as cancer.

The extent to which the new alliance between consumer advocates and Republican lawmakers holds remains to be seen. “One of the drawbacks we have when you get more widespread support is you’re going to have a more diverse group of people,” said Faber, acknowledging the challenge.

One such salient example was offered by the West Virginia state representative Adam Burkhammer, the Republican lawmaker who introduced the food dye ban, and said he would pursue Maha legislation in future.

“We need to look at everything,” said Burkhammer, before blowing a dog whistle for Republicans’ anti-vaccine base: “I think we must continue to look at our processed foods, potable water quality, and even our pharmaceutical and vaccine ingredients,” Burkhammer said.

“We should leave no stone unturned as we truly work to ‘make America healthy again’,” he said.