MORGANTOWN – The House of Delegates Health Committee spent two hours on Tuesday hearing the pros and cons of a bill to ban a handful of synthetic dyes from foods sold in West Virginia.
Current code bans added substances and ingredients that are “poisonous or injurious to the health” from food, drink, confectioneries and condiments.
HB 2354 would add a single line banning red dye 3, red dye 40, yellow dye 5, yellow dye 6, blue dye 1, blue dye 2 and green dye 3.
Bill sponsor Adam Burkhammer, R-Lewis, explained the reasoning behind the bill, citing his own family experience. They are caring for a child who had some behavior issues and was suspected – but not yet diagnosed – of falling on the autism spectrum.
The elected to remove synthetic food dyes from the child’s diet. “Within weeks we started seeing a turnaround.” But one day after church the child’s behavior got out of control. They learned that the chid had eaten a lollipop containing synthetic dye during church.
“So that’s where the legislation came from. I believe this is a real life issue that is affecting kids in our state,” he said.
Some general background that informed the two hours of testimony and questioning. Thousands of products include synthetic dyes: breakfast cereal, candy, medications (pills and liquids), snack foods, drinks, cake mixes. Froot Loops, Trix, Cheetos and Kool-Aid are a few examples. Some generic versions of brand-name products, such as Aldi cereals, use alternative colors.
The FDA has already ordered that red dye 3 must be removed from foods by 2027 and medications by 2028 because of its links to cancer. It’s already banned in some European countries, Australia and New Zealand
California has banned blue 1 and 2, green 3, red 40 and yellow 5 and 6 from schools because of concerns about behavior issues. Illinois, New York and Pennsylvania are looking at bans.
Environmental health consultant Lisa Lefferts testified in favor of the bill. She served on the 2011 FDA advisory board looking into synthetic dyes, was senior scientist for the nonprofit Center for Science in the Public Interest, and was lead author of the petition that led to the FDA’s red 3 ban.
Among the research on synthetic dyes, Lefferts cited 27 clinical trials linking the dyes to neurological and neurobehavioral impacts on children. Some children are more sensitive than others and there are degrees of impacts, she said.
“And they’re completely unnecessary,” she said. “It is just cosmetic. It is simply cosmetic. … It helps sell the product.”
The FDA is not leading the way on phasing out the dyes, she said. It conducts pre-market safety reviews based on animal studies 35-70 years old that aren’t geared to contemporary health concerns.
Despite FDA inaction, she said, some companies are responding to consumer concerns and using alternative means of food coloring. Others aren’t, even if they sell European or Canada versions with other colors. “It’s not like they have to reinvent the wheel. They just have to start using it, just need a little push.”
And while some bodies, such at the West Virginia Beverage Association, cite current FDA approval of the dyes as assurance of their safety, Lefferts said the FDA has not done a thorough evaluation of them in decades and has nothing on its agenda.
“I don’t think we can rely on the FDA,” she said.
Whitney and Brandon Cawood, of Georgia, also spoke on behalf of the bill. They are co-directors of the documentary To Dye For.
Whitney said their son has neurologic sensitivities and was expressing intense aggressive behaviors. By changing his diet, they ruled out wheat and dairy, and traced the problem to the synthetic dye in his over-the-counter allergy medicine.
For many children, she said, these dyes have far-reaching impacts and lasting consequences, but no functional purpose beyond marketing. With FDA inaction, parents have to rely on checking on ingredient lists, with dyes nearly everywhere and almost impossible to avoid.
On the marketing aspect, Brandon talked about General Mills’ failed 2016 effort to replace the bright colors in Trix with natural colors that were more muted. The public balked, sales dropped and Trix went bright again.
Their son can’t eat American Froot Loops, he said, but the Canadian version is just fine. He would like to see a ban on the dyes, or at least a warning label.
West Virginia Retailers Association President Bridget Lambert didn’t outright oppose the bill, but offered some cautions.
Association members have 40,000 products on their shelves, she said, and some are served by multi-state distributors. “This is a broad-based product impact, she said. “It is imperative that our retailers have a clear and concise set of laws and regulations.”
The bill could impede interstate commerce through conflicting regulatory structures, she said, and possibly feed inflation and undermine consumer confidence.
While some alternatives are available, reformulation of products by other manufacturers will be complex and time intensive, she said.
The association, she said, would like the federal government to look at this on a national level, she said. The Legislature could perhaps, instead of a bill, send a resolution to the federal government indicating its concerns.
Another concern, she said, is the effective date of the bill. Bills become effective 90 days after enactment, and that wouldn’t allow retailers or manufacturers time to respond.
Burkhammer acknowledged that problem when he spoke about the bill, and said some kind of phase-in for a future year could be worked into a new version of the bill.
Under the current House committee process, Tuesday’s meeting was the hearing, devoted to the presentation of the bill to the members and testimony. The next time the bill is taken up it will be marked up (revised and amended), debated and voted on.
