California Barred from Enforcing Prop 65 DEA Warning After First Amendment Challenge

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On June 24, 2026, the U.S. District Court for the Eastern District of California entered a final judgment and permanent injunction barring the Attorney General from enforcing Proposition 65’s cancer-warning requirement for diethanolamine (DEA) in cosmetics.  The judgment adopts a stipulation that the Personal Care Products Council (PCPC) and Attorney General Rob Bonta filed the day before, resolving PCPC’s First Amendment challenge to the DEA warning.

First Amendment Arguments

As discussed in a previous post, DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, in its complaint, PCPC argued that IARC did not identify any studies establishing a link between DEA and cancer in humans, relying instead on a study of “questionable relevance” in a highly susceptible strain of mice.  As a result, PCPC contended, applying the DEA Prop 65 cancer warning “in cosmetic and personal products is false, misleading, and factually controversial,” in violation of the First Amendment.

What the Parties Agreed

The Attorney General did not concede the constitutional question.  He continues to dispute that the DEA warning violates the First Amendment, but agreed to resolve the case in light of, as the stipulation puts it, “the current state of the relevant science” and three recent decisions rejecting compelled Prop 65 cancer warnings: a Ninth Circuit ruling on glyphosate, and two district court rulings on acrylamide and titanium dioxide. Under the stipulation, the Attorney General reserves the right to move to dissolve the injunction under Federal Rule of Civil Procedure 60(b) if the facts or law change.

What the Order Provides

The order declares that, based on the current state of the science, the DEA cancer warning cannot be constitutionally enforced.  It permanently enjoins the Attorney General, his officers, employees, and agents, and “all those acting in privity or concert with” them from filing or prosecuting new lawsuits to enforce the DEA warning requirement for cosmetic and personal care products.  For companies that make or sell DEA-containing cosmetics—shampoos, liquid soaps, and body washes—the order removes the Attorney General as a source of new DEA warning suits.

Because the judgment was entered on the parties’ stipulation rather than after a merits ruling, no court weighed the DEA science or held the warning unconstitutional in adversarial litigation.  Its declaratory language is tied to the current state of the science, and the Rule 60(b) reservation leaves room to revisit the injunction if that science or the law changes.

The case is The Personal Care Products Council v. Bonta, No. 2:26-cv-00682 (E.D. Cal.), complaint filed March 2, 2026.

FIFRA Preempts Label-Based Failure-to-Warn Claims, Supreme Court Rules

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On June 25, 2026, the Supreme Court held, 7-2, that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state-law failure-to-warn claim alleging that Monsanto failed to warn users that the weedkiller Roundup causes cancer.  The decision in Monsanto Co. v. Durnell concludes that EPA’s approval of a pesticide label without a cancer warning constitutes a federal labeling “requirement” that state tort law cannot override.

The ruling resolves a circuit split. The Third Circuit previously found preemption on these facts, while the Ninth and Eleventh Circuits and several state appellate courts had not.

What the Court Decided

Writing for the majority, Justice Kavanaugh identified two interlocking features of FIFRA’s registration regime that together produce the preemptive effect.  First, before registering any pesticide, EPA must determine that the proposed label contains all warnings “necessary and . . . adequate to protect health and the environment” and is not false or misleading.  That determination reflects the agency’s considered judgment about what a label must—and need not—say.  Second, EPA’s implementing regulations require manufacturers to use the EPA-approved label, subject to narrow exceptions not at issue in this case.  Changing the label without EPA approval, including by unilaterally adding a cancer warning, may expose the manufacturer to civil and criminal penalties under federal law.  Together, the majority reasoned, those features constitute a federal labeling “requirement” under FIFRA’s preemption clause that preempts state tort law claims imposing labeling requirements “in addition to or different from” those required under FIFRA.

The majority found support for that reasoning in Riegel v. Medtronic, Inc., which held that FDA premarket approval of medical devices preempts conflicting state-law device claims, emphasizing the similarities between that preemption clause and FIFRA’s.  It also distinguished Bates v. Dow Agrosciences LLC, which allowed state failure-to-warn claims equivalent to FIFRA’s misbranding standard, on the ground that Bates involved efficacy claims—statements EPA does not review at registration.  Safety determinations, which EPA does review, carry preemptive force that efficacy claims do not, the majority ruled.

Writing for the dissent, Justice Jackson argued FIFRA’s own misbranding prohibition is the relevant federal requirement, and a state claim that simply parallels that prohibition should not be preempted under Bates.  The majority and dissent also disagree over whether EPA’s precautionary-statement regulations reach chronic risks like cancer, as opposed to only acute hazards.  The majority concludes they do, while the dissent maintains the regulatory text addresses acute hazards only.  Because cancer is a chronic condition, the dissent argues pesticide manufacturers can add a cancer warning without EPA approval.

Justice Thomas joined the majority in full but wrote separately to question whether FIFRA’s registration scheme exceeds Congress’s Commerce Clause authority, whether FIFRA unlawfully delegates legislative power to EPA, and whether agency action can carry preemptive force under the Supremacy Clause at all.  No other Justice joined that view.

Who’s Affected

The decision most directly benefits pesticide and agrochemical manufacturers defending failure-to-warn claims premised on an EPA-approved label.  The Court’s reasoning, however, leans on a comparison to other federal statutes with similarly worded preemption clauses, which suggests the analysis may be cited in disputes involving other federally regulated, labeled products.  The opinion does not address other theories—such as design defect, manufacturing defect, or advertising-based claims—that were not before the Court in this case.

What to Watch

The Judicial Panel on Multidistrict Litigation’s pending-dockets report lists roughly 3,900 active cases in the Roundup MDL as of July 1, 2026, a population of claims against which Durnell‘s reasoning will likely be tested in dismissal motions.  EPA’s glyphosate registration posture also remains unsettled in part, since the Ninth Circuit vacated the agency’s most recent 2020 interim registration review decision in 2022.

In addition, federal lawmakers have introduced legislation to override the Court’s interpretation.  The People Over Poison Act, H.R.9528, would add language to FIFRA clarifying that the law’s preemption clause “shall not be construed to prohibit or otherwise limit a claim related to the labeling or packaging of pesticides or devices under the tort law of any State.”  The bill was introduced on June 29, 2026, by Reps. Chellie Pingree (D-ME) and Thomas Massie (R-KY) and has been referred to the House Committee on Agriculture.

The case is Monsanto Co. v. Durnell, No. 24-1068 (U.S.), petition for writ of certiorari granted January 16, 2026.  A previous post on the case, written after the Court granted certiorari, can be found here.

New Mexico PFAS Labeling Rule Faces Appeal Over Free Speech, Agency Authority

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A docketing statement has been filed in a state-court challenge to New Mexico’s near-universal PFAS labeling requirements, finalized by the New Mexico Environmental Improvement Board (EIB) in April as part of a broader rule implementing the state’s PFAS Protection Act (HB 212).

The docketing statement, filed June 22, 2026, identifies four issues on appeal:

  1. First Amendment. The rule requires manufacturers to affix a PFAS label—an Erlenmeyer flask bearing the term “PFAS”—to products containing any substance meeting HB 212’s definition of PFAS.  The appellant argues that the definition is among the broadest in use by any government or regulatory body, and “encompasses substances whose status as PFAS is subject to robust scientific debate, compelling businesses to make untrue and misleading claims on their products.”
  2. Exceedance of statutory authority—exemptions. HB 212 expressly exempts sixteen categories of products from its prohibitions and reporting requirements.  The appellant contends that the rule nevertheless requires labeling for most of those exempt products, extending the rule’s reach beyond the enabling statute.
  3. Arbitrary deadline. The rule requires labels on products manufactured on or after January 1, 2027, less than nine months after the rule’s adoption.  According to the appellant, relabeling requires packaging redesign, legal and regulatory review, coordination with printers and suppliers, and production schedule alignment.  The administrative record showed manufacturers need at least 18 months to comply, but the EIB arbitrarily rejected that evidence, the appellant argues.
  4. Exceedance of statutory authority—fees. The rule imposes fees for PFAS reporting submissions, currently unavoidable use applications, and label waivers.  The appellant contends that HB 212 does not grant the EIB authority to impose fees.

The case is Diamond Vogel, Inc. v. New Mexico Environmental Improvement Board, No. A-1-CA-43483 (N.M. Ct. App.), filed 05/22/2026.

Industry Groups Tell Third Circuit That EPA’s TCE Exemption Is Unworkable

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Companies granted an exemption from EPA’s ban on trichloroethylene (TCE) are asking the Third Circuit to vacate key conditions of that exemption, arguing that the requirements are so stringent they defeat the exemption’s purpose under the Toxic Substances Control Act (TSCA).

The brief, filed May 13, 2026, is one piece of consolidated litigation in which industry groups, environmental organizations, and labor unions are contesting EPA’s TCE prohibition.  EPA has placed the delayed prohibitions for critical uses on hold pending resolution of the case.

The petitioners include a trade association, a manufacturer of a lead-acid battery component, and a company that produces a specialty material used in passports.  EPA granted exemptions to the TCE ban for both uses under TSCA section 6(g), which permits exemptions when compliance “would significantly disrupt the national economy, national security, or critical infrastructure.”

However, the exemption came with a stringent 0.2 parts per million (ppm) worker exposure limit—a threshold the petitioners argue violates TSCA’s requirement that exemption conditions still “achiev[e] the purposes of the exemption.”

Even with state-of-the-art controls, the petitioners contend that the interim existing chemical exposure limit (ECEL) would require workers to wear bulky, full-facepiece respirators at all times.  That level of PPE use is infeasible, they argue: some workers cannot wear it for medical reasons, it impedes communication, hearing, and movement, and it is intolerable to wear for an entire shift.

“EPA admits that respiratory PPE creates health and safety hazards, and the record demonstrates that respiratory PPE cannot feasibly be worn all day, every day, by employees in Petitioners’ manufacturing facilities,” the brief states.

“Petitioners will thus be unable to invoke the section 6(g) exemption and will have to shut down their operations in the United States—the very outcome the exemption was intended to avoid,” the petitioners allege.

The petitioners suggested alternative interim ECELs, including a limit aligning with the European Union and United Kingdom’s 6 ppm restriction, but say EPA “merely nodded at this figure without providing any reasoned analysis for rejecting it.”

Best Available Science

The petitioners also challenge the scientific basis for the 0.2 ppm threshold.  Their brief focuses on a rodent oral-exposure study that allegedly underpinned the interim ECEL, arguing it was methodologically flawed in multiple respects, including that its experimental and control groups were not run concurrently.  Most importantly, they argue, its linkage between low TCE exposures and congenital heart defects has not been replicated in a dozen other experiments.

“TSCA’s best-available-science requirement is meant to prevent precisely this kind of selective reliance,” the brief contends.

The petitioners also challenge EPA’s decision to limit the TCE exemption for lead-acid battery separator manufacturing to 20 years rather than the 25 years requested, arguing that the shorter duration was arbitrary.

The brief asks the court to vacate both the interim ECEL requirement and the 20-year cap on the battery-separator exemption.  (The exemption for TCE used to manufacture specialty polymeric microporous sheet materials runs for 15 years and is not at issue on this point).

The consolidated proceedings were formerly captioned United Steelworkers v. EPA, No. 25-1055 (3d Cir.).  The brief can be found in the docket for Microporous LLC v. EPA, No. 25-1080 (3d Cir.).

New Mexico PFAS in Products Rule Appealed

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A legal challenge has been filed in state court against New Mexico’s PFAS in products rule, which was finalized last month.

As noted in a recent Chemical Watch article, concerns include product labeling issues and timelines that emerged during the rulemaking process.  The final rule’s labeling requirements apply to all products containing intentionally added PFAS manufactured on or after January 1, 2027, with narrow exceptions.

More details will become available after the appellant files a docketing statement, due within 30 days of the suit’s filing on May 22, 2026.  The notice of appeal can be found here.

For more on the rulemaking, view our New Mexico PFAS archive.

EPA Cannot Use Low Exposure to Justify DecaBDE Inaction, Ninth Circuit Rules

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The Ninth Circuit has ruled that EPA’s decisions not to regulate certain decabromodiphenyl ether (decaBDE) exposures under the Toxic Substances Control Act (TSCA) were not supported by substantial evidence, ordering the agency to regulate or better justify its inaction in four areas: recyclable articles, disposal, wastewater, and sewage sludge.

The May 13, 2026, ruling leaves EPA’s regulations for decaBDE intact but remands them back to agency to regulate—or better defend its decision not to regulate—those areas.  It is the first time a court has weighed in on TSCA section 6(h), which requires EPA to reduce exposures to certain persistent, bioaccumulative, and toxic chemicals (PBTs) “to the extent practicable.”

Congress added section 6(h) in 2016.  EPA issued a risk management rule for decaBDE in 2021 and amended it in 2024, targeting the flame retardant’s use in products.  But the agency declined to regulate various other exposures, citing low exposures and prohibitively high costs.

Siding with environmental groups, the Ninth Circuit rejected EPA’s low-exposure rationale outright.  Because TSCA does not require EPA to conduct a risk evaluation before regulating section 6(h) PBTs, Congress already determined that any exposure warrants a regulatory response, the court held.

“[I]t is beyond EPA’s authority to justify a decision not to regulate based on there being low levels of decaBDE,” the opinion states.  “TSCA § 6(h)(4) permits EPA to consider decaBDE levels for the purpose of deciding between regulatory tools, but not in deciding whether to use a regulatory tool at all.”

The court stopped short of holding that high costs can never justify a decision not to regulate under section 6(h), but it found EPA’s cost evidence consistently inadequate.  For recyclable articles, for example, EPA’s economic analysis relied on studies not specific to decaBDE and failed to consider regulatory options short of an outright ban.

Substantial Evidence

EPA’s other justifications fared no better under TSCA’s “substantial evidence” standard, which the court characterized as a “searching review.”

On disposal, EPA argued regulations were unnecessary because the Resource Conservation and Recovery Act (RCRA) already reduces exposures to the extent practicable.  But the court held that “EPA cannot evade its responsibilities under TSCA to regulate decaBDE disposal merely by invoking EPA’s compliance with another statute regulating solid waste disposal,” while also observing that RCRA does not cover all possible disposals.

For wastewater, the court found that EPA had ignored data contradicting its position that decaBDE is not released to water.  And, on recycling, it held that the agency gave “undue weight” to its position that regulation would undermine its general pro-recycling stance.

The court also rejected EPA’s fallback argument that staged regulation justifies its current inaction.  Section 6(h) “expressly places regulation of decaBDE on an expedited timeline,” the court held, and EPA has made no commitment to address these exposures in future rulemaking.

The case is Alaska Cmty. Action on Toxics v. United States EPA, No. 21-70168 (9th Cir.).

EPA Avoids Court Order on Organophosphates, but Timeline Concerns Remain

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The Ninth Circuit has declined to force EPA to act on a petition brought by nonprofits targeting organophosphate pesticides, calling the request “premature” despite noting concerns with the agency’s response timeline for certain pesticides.

The 2021 petition, brought by environmental and farmworker groups, asks EPA to revoke Federal Food, Drug, and Cosmetic Act (FFDCA) food tolerances and cancel Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) registrations for organophosphate pesticides due to health harms.

In a memo issued April 27, 2026, the court generally accepted EPA’s plan to address the disputed pesticides in three groups, finding the delay thus far “below the threshold of what we have generally found to be unreasonable.”

Under EPA’s proposed schedule, the agency plans to respond to the first group of pesticides in 2026.  For the second group, EPA plans to address the FFDCA issues in 2026 and the FIFRA issues during registration review.  EPA plans to address the third group entirely in conjunction with registration review.

Still, the court expressed concern about “the lack of a concrete timeline” for resolving some of the petitioners’ FIFRA claims, particularly those involving pesticides that may present higher risks.

“EPA admits that it will not complete its registration review for any of the thirteen pesticides by the October 2026 statutory deadline,” the memo states.  “If, by the expiration of that statutory deadline, EPA still ‘does not offer a timetable’ for resolving the FIFRA-related claims for those particular pesticides presenting higher levels of risk,” the outcome may be different, the court said.

“If EPA chooses not to address the chemicals posing the greatest risk by the 2026 deadline, Petitioners are free to file a second mandamus petition as to those chemicals,” the court added, using the legal term for a petition seeking to compel agency action.

Registration Review

The court was partly persuaded by the existence of the October 2026 registration review deadline itself, which Congress extended from October 2022 through the Pesticide Registration Improvement Act of 2022, commonly known as PRIA 5.

“Congress thus judged that EPA needs more time to complete the FIFRA registration review process for the types of pesticides at issue,” the memo states.  “This weighs heavily against granting relief with respect to Petitioners’ FIFRA-related claims until after the congressional deadline has passed.”

The October 2026 deadline for registration reviews applies to pesticides registered before October 1, 2007, when Congress formally required EPA to review each registered pesticide at least once every fifteen years to ensure that it can still be used without unreasonable adverse effect on human health or the environment.

Human Health Concerns    

The 2021 petition argues that organophosphate pesticides can cause a range of unreasonable adverse effects, including neurodevelopmental harm in children at exposures “far below” EPA’s current regulatory endpoint.  According to the petition, those harms include impaired motor and mental development, reduced IQ, attention disorders, and autism associated with low-level exposure.

These alleged harms were not sufficient for the court to force EPA’s hand, however.

“The breadth of [Petitioners’] request was perhaps reasonable in 2021 in light of what the EPA characterizes as its earlier conservative assumption ‘that all the [organophosphates] cause similar neurodevelopmental effects.’”  But “all parties now seem to agree that the degree of risk does not appear to be consistent for all thirteen pesticides still at issue.”

For example, the petitioners conceded that the pesticides chlorethoxyfos, tribufos, and terbufos are lower priority at oral argument, while emphasizing greater risk associated with bensulide, the court said.  “On this record, we cannot hold that human risks justify granting the petition as to all thirteen pesticides.”

The case is In re Pesticide Action Network North America, No. 25-3955 (9th Cir.), petition for a writ of mandamus filed 6/25/2025.  The memorandum disposition is unpublished.

Manufacturer Challenges Court-Ordered CBI Disclosure

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A specialty materials manufacturer is suing EPA to prevent the release of its unredacted premanufacture notices (PMNs) under seal in separate litigation challenging the transparency of EPA’s new chemicals program under the Toxic Substances Control Act (TSCA).

A March 23, 2026, court deadline for EPA to produce the documents has now passed without EPA compliance, as the agency, environmental groups, and the manufacturer battle over the appropriate course of action.

The five environmental groups brought the original suit in 2020, alleging that EPA violates TSCA by withholding certain information from the public and allowing overly broad confidential business information (CBI) claims.  In December 2025, over EPA’s objections, the D.C. District Court ordered the agency to produce unredacted PMNs under a protective order as part of the administrative record.

Arkema, Inc. submitted two of those 84 PMNs.  After EPA notified the company of the impending disclosure, Arkema filed suit on March 13, 2026, to block it.

While TSCA allows EPA to disclose CBI as required by a court order, Arkema argues that the scope of the disclosure encompasses information beyond what is at issue in the case.  EPA’s failure “to narrow appropriately the scope of CBI disclosures to only those necessary and related to the claims at issue is both arbitrary and capricious,” the complaint states.

Arkema further contends that “the terms of the protective order are insufficiently protective of proprietary information” and impose “substantially less stringent requirements than EPA itself requires to protect CBI” because they lack provisions for safe storage and handling, training, designated work areas, limits on the number of recipients, a central oversight contact, or recourse for inadvertent disclosures.

Arkema’s suit prompted EPA to move for a stay of the disclosure order on March 17.  While “Arkema seeks relief only as to the information that it claims is CBI,” EPA argues that the lawsuit implicates all CBI-designated materials at issue in the case.  In addition, the agency warns that allowing separate production of Arkema’s PMNs could inadvertently reveal which PMNs belong to Arkema and thereby compromise its CBI claim.

Environmentalists’ Response

In a March 19 response, the plaintiffs argue that Arkema’s suit and EPA’s motion are a delay tactic in the long-running litigation.

EPA should never have notified Arkema of the impending disclosure, the plaintiffs contend, because multiple statutory notification exceptions apply.  Under the plaintiffs’ reading of TSCA, notification is a precondition to filing suit—meaning there is “no basis for” the new challenge.

This “should have been evident to EPA,” the plaintiffs allege.  “Nevertheless, EPA voluntarily sent a letter to Arkema incorrectly stating they had a right to appeal….Now that a single manufacturer has submitted such an appeal, EPA turns around and asks this Court yet again to halt production of all 84” contested PMNs, not just Arkema’s.

If EPA believed that a manufacturer could challenge the disclosure and enjoin EPA from complying with the court’s order, it should have said so, the plaintiffs argue.  “Instead, it remained silent, thereby inviting the current procedural mess.”

Nor has EPA met its burden to receive its requested relief, since it has not alleged any hardship, the response continues.  And despite the company’s CBI claims, the plaintiffs note that it may already be apparent which of the sanitized PMNs—already provided to the court—belong to Arkema: one contains an attached safety data sheet identifying the company by name, and another includes “a number of documents with Arkema’s letter head.”

The plaintiffs further argue that six years of media coverage make it implausible Arkema was unaware its PMNs might be disclosed, alleging the company “has slept on its rights.”  Arkema “never claims that it did not know of this lawsuit or the potential implications for its PMNs, but instead has carefully worded its allegations” to say only that it was never informed of active discussions about the scope and terms of releasing its CBI.

EPA’s Reply

In a March 20 reply, EPA says it is agreeable to the environmental groups’ suggestion that the parties meet and confer about potential consolidation or modification of the protective order to address Arkema’s concerns.  But EPA reiterates its request for a stay, arguing that the agency “is caught in an untenable situation” that demonstrates “clear hardship.”

“Requiring EPA to produce any of the unredacted PMNs would prematurely decide Arkema before the parties (EPA, Plaintiffs, and Arkema) have an opportunity to resolve the competing positions and defeat the purpose of coordination and possible consolidation or modifications to the protective order,” the reply states.

EPA contends its disclosure notifications to Arkema and other companies were required, arguing that none of the statutory exemptions apply.  The agency also notes that, due to difficulties confirming receipt, a subset of companies are still within TSCA’s 30-day window—triggered by notification—to file suit to enjoin disclosure.

EPA further argues that whether it can selectively withhold only Arkema’s PMNs is a legal question that should be resolved in the new litigation.  “Until the parties or the Court resolve that legal question, EPA proceeds cautiously,” the reply states, citing TSCA provisions imposing criminal penalties for wrongful CBI disclosures.

On March 25, the environmental groups notified the court that EPA failed to produce the unredacted PMNs by the March 23 deadline.

The case is Arkema Inc. v. EPA, No. 26-cv-886 (D.D.C.).  The underlying case is Environmental Defense Fund v. Zeldin, No. 20-cv-762 (D.D.C.).

Latest Prop 65 Challenge Targets DEA After Series of Industry Wins

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A cosmetics industry trade group is asking the Eastern District of California to enjoin a Proposition 65 warning for diethanolamine (DEA), arguing that the label disclosure violates the First Amendment.

The suit was filed March 2, 2026, by the Personal Care Products Council (PCPC).  It follows a string of court victories challenging other Prop 65 warning requirements for chemicals including glyphosate, acrylamide, and titanium dioxide, the last of which was also brought by PCPC.

DEA was automatically added to the Prop 65 list after the International Agency for Research on Cancer (IARC) concluded that the substance is “possibly carcinogenic to humans.”  However, PCPC argues that IARC was unable to find a single study establishing a link between DEA and cancer in humans, instead basing the determination on a study of “questionable relevance” in a highly susceptible strain of mice.  Other regulatory bodies, like FDA and EPA, have not reached the same conclusion, and some have “expressed skepticism” about the mouse study, PCPC argues.

“Indeed, no California agency has made any scientific determination as to whether DEA causes cancer in humans.  Nor has any federal agency done so,” the complaint states.

According to PCPC, laws regulating commercial speech are typically subject to intermediate scrutiny, with a more lenient standard for purely factual and noncontroversial disclosures.  However, because the “cancer warning requirement as applied to DEA in cosmetic and personal products is false, misleading, and factually controversial, it cannot survive any level of constitutional scrutiny” and therefore violates the First Amendment, the complaint alleges.

PCPC argues that the warning requirement effectively forces companies to choose between “conveying the unsubstantiated message that DEA in cosmetic products increases cancer risk in humans” or facing “a significant and imminent risk of an enforcement action.”  Although an exception exists for products that do not present significant risk, the complaint notes that companies must be able to prove that defense in court if challenged, a costly and uncertain process that leads many to “acquiesce and provide a warning” even if they believe it is inaccurate.

PCPC also claims that, since the warning requirement took effect in 2013, hundreds of companies manufacturing or selling personal care products have paid over $7 million in settlements with private enforcers.

The trade association seeks a declaration that the warning is unconstitutional as applied to personal care products and a permanent injunction barring enforcement by California or private parties.

The case is The Personal Care Products Council v. Bonta, No. 26-cv-682 (E.D. Cal.), filed 3/2/26.

Fourth Circuit to Review West Virginia Dye Ban Injunction

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The Fourth Circuit will decide whether a lower court properly paused enforcement of a West Virginia law banning certain FDA-approved synthetic color additives over concerns the statute is unconstitutionally vague.

The case arises from a 2025 West Virginia law designating seven color additives as “poisonous and injurious” and prohibiting their use in school nutrition programs—including six additives currently approved by FDA for use in food, drugs, or cosmetics.

On December 23, 2025, the Southern District of West Virginia issued a preliminary injunction, agreeing with a color additive trade association that identifying FDA-approved additives as “poisonous and injurious” rendered the law’s requirements unclear.

“[T]he inclusion of a list of FDA-approved color additives muddies the water and creates confusion as to what substances now constitute ‘poisonous and injurious,’” the court wrote.  Food additive makers “cannot predict what substances may be considered ‘poisonous and injurious’ when such a slim explanation exists for the named color additives,” leaving the door open for arbitrary enforcement, the opinion continues.

The court further emphasized that, because FDA has not determined six of the seven listed additives to be unsafe, “it is imperative that West Virginia define and, thereby, give necessary notice and guidance as to what constitutes ‘poisonous and injurious.’”

The trade association’s additional claims—that the statute constitutes an unconstitutional bill of attainder and violates the Equal Protection Clause—were rejected.  West Virginia officials filed a notice of appeal on January 22, 2026.

Although West Virginia has long barred the sale of adulterated food, including food containing ingredients deemed “poisonous or injurious to health,” it had not previously identified specific substances as meeting that undefined statutory standard.

Contested Additives

The seven color additives named by the statute are FD&C Blue No. 1, FD&C Blue No. 2, FD&C Green No. 3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.  FDA has revoked authorization for FD&C Red No. 3 in food and ingested drugs, effective January 2027.  Only the six additives that remain FDA-approved are at issue in the litigation.

H.B. 2354 also names two preservatives, butylated hydroxyanisole (BHA) and propylparaben.  This month, FDA launched a reassessment of BHA’s safety, publishing a request for information on the use and safety of the substance.  BHA is currently listed as generally recognized as safe (GRAS).

The appellants, West Virginia officials from the Department of Health and Bureau for Health, must file their opening brief by March 4.  The trade association’s response is due April 3.

The case is International Association of Color Manufacturers v. Singh, No. 26-1085 (4th Cir.), appeal filed January 22, 2026.  The underlying case, No. 25-cv-588 (S.D. W. Va.), was filed October 10, 2025.