• The U.S. District Court of the Western District of Texas issued a preliminary injunction last week blocking enforcement of Section 9 of Texas Senate Bill 25, which requires food manufacturers to include the following conspicuous warnings for 44 listed ingredients, subject to certain exceptions: “WARNING: This product contains an ingredient that is not recommended for human consumption by the appropriate authority in Australia, Canada, the European Union, or the United Kingdom.”  We have previously blogged about the bill and the challenge to it.
  • The Court held that the Section 9 warning requirement was a content-based regulation of speech and therefore was subject to strict scrutiny requiring the government to show that the law is “justified by a compelling government interest and is narrowly drawn to serve that interest.”  Texas, which had argued that intermediate scrutiny should be applied, did not meet this burden. The Court also indicated that the law would have failed intermediate scrutiny, in part because the law did not directly advance the state interest in supporting the health and well-being of its citizens, nor was it narrowly tailored to serve the government interest (e.g., the government could have conducted an advertising campaign to promote public health). 
  • The Court, however, declined to hold that the confusing preemption provision in Section 9 is unconstitutionally vague. That provision establishes various conditions under which the warning would not be required, including when a law or regulation issued by the U.S. Food and Drug Administration “determines an ingredient or class of ingredients is safe for human consumption.” This preemption provision seems to nullify Section 9’s warning requirement with respect to any of the listed ingredients that are the subject of an FDA food additive regulation or GRAS regulation. The Court also held that Plaintiffs had not met their burden with respect to their argument that Section 9 was preempted by the Federal Food, Drug, and Cosmetic Act, and the Nutrition Labeling and Education Act.