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.