It's time for US petroleum-based food dye usage to, well, die

People have been naturally coloring their food for a long, long, LONG time — as far back as 1500 B.C. Centuries later in 1856, William Henry Perking stumbled onto the first synthetic dye derived from coal tar. By 1900, roughly 80 unregulated synthetic dyes were used as food colors including lead, mercury and arsenic.

It wasn’t until 1906 that USDA began to get a handle on poisonous and concealing synthetic food color additives with passage of the Food and Drug Act.

But regulation over the years has done little to stem controversies over the safety of synthetic food dyes, including fairly recent charges that they can lead to behavioral disorders in some children.

Nor has the Food and Drug Administration done much to earn the public trust in the regulation of synthetic dyes.

All of which is leading a number of states, notably West Virginia, California, Utah and Virginia, to pass new laws controlling or banning synthetic food dyes.

And the feds are now in the process of creating regulations to remove all petroleum-based food dyes from the market without scientific analysis.

FDA Commissioner Martin Makary says it’s high time to put kids first:

“My feeling is, why gamble with the health of our children? We have some data points. We have some observational studies. We believe that these artificial food chemicals are implicated. My feeling is, why not err on the side of safety? Why say, ‘Let’s just take the risk because the vibrance of the colors is so appealing, it’s worth it.’”

Markary has a point. And already a surprising number of major U.S. food manufacturers have been falling over one another to get on board.

This is all great news for Americans right? Who wouldn’t eat less colorful Fruit Loops knowing their children are safe from ingesting petroleum-infused food products?

As it turns out, it’s the International Association of Color Manufacturers that in June filed a lawsuit challenging the constitutionality of West Virginia’s new law banning foods and beverages colored with synthetic food dyes.

The West Virginia law has already put the kibosh on the use of Blue 1, Blue 2, Green 3, Red 3, Red 40, Yellow 5, and Yellow 6 in meals served in a school nutrition program. A total ban on the list goes into effect Jan. 1, 2028:

“Whoever, by himself or herself or his or her agents, knowingly adulterates or causes to be adulterated any article of food drug, or knowingly manufactures for sale, offers for sale, or sells, within this state, any article of food or drug which is adulterated within the meaning of this article, without making the same known to the buyer, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not exceeding $500, or confined in jail not more than one year, or both, in the discretion of the court; and in addition to the penalties herein-before provided, he or she shall be adjudged to pay the cost and expense of analyzing such adulterated food or drug, as set forth in the certificate of the person making the analysis, not exceeding $25 in any one case, which shall be included in the costs of such prosecution and taxed in favor of the state department of health or the West Virginia Board of Pharmacy, as the case may be; and if he or she be a registered pharmacist or assistant pharmacist, his or her name shall be stricken from the register. The adulterated article shall be forfeited and destroyed.”

The association’s lawsuit says the West Virginia law violates both due process and equal protection guarantees and is an unconstitutional bill of attainder “singling out for prohibition and criminal sanction the named color additives without providing their manufacturers any opportunity to demonstrate that they are not harmful and thus not worthy of criminal penalties.”

The lawsuit claims compliance will be “costly and complex,” that “reformulating products is neither simple not immediate,” and “overcoming all the challenges created by a nonscientific mandate, including production hurdles, technical limitations, supply chain restraints, uneven product results, higher costs, and regulatory inconsistencies, will take more than five years, if not an entire generation.”

The lawsuit emphasizes “all six of the subject synthetic color additives banned by H.B. 2354 are safe and currently approved by the FDA for use in human food.”

Well.

I would say that given the number of promises from major food manufacturers — including Conagra, General Mills, WK Kellogg, Tyson Foods, and PepsiCo — to quickly terminate use of synthetic food dyes that the association’s lawsuit says a whole lot more about its unwillingness to comply with the West Virginia law then its ability to comply.

I’m sure any number of U.S. food companies still on the fence over the synthetic dye issue will be closely watching the lawsuit to decide which way to jump. It’s likely the early adopters have accepted the ever growing public demand for “eating healthy,” and believe they will be rewarded for banning synthetic food dyes from their product lines. And I expect even more companies will sign up in the days ahead.

The association may well win its West Virginia state lawsuit on constitutional grounds. But given FDA’s own push to quickly terminate use of petroleum-based food dyes, the lawsuit could likely be mostly moot and irrelevant in the larger context.

The International Association of Color Manufacturers may be on a fool’s errand — win the battle but lose the war. As for petroleum-based food dyes … I say good riddance. And I bet most of the public will say the same.