• A group of food industry trade associations filed a complaint (Law360 subscription required) against the State of Texas on December 5, 2025, claiming that the recent “Make Texas Healthy Again Act” is unconstitutional because the government is forcing the industry to spread false information about the safety of products and that the law undermines the domestic regulation of food safety.
  • Texas Senate Bill 25 was signed into law in June 2025 to require companies to either remove or place a warning label on any product that contains any of the 44 listed substances, as we previously blogged. The warning label must read “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.” The requirement applies to food product labels developed or copyrighted after January 1, 2027, and the law includes a preemption provision that should limit its warning label requirements.
  • According to the food industry groups, Section 9 of the Act violates Texans’ First Amendment rights “by compelling businesses to speak government-scripted messages—and to repeat inaccurate and misleading messages at that.” The complaint alleges that the government does not have a legitimate interest in “forcing businesses to spread false messages to consumers that don’t advance safety and transparency.” Further, the plaintiffs say that the provision “fails every prong of the First Amendment compelled commercial speech test.”
  • The complaint goes on to say that the provision is preempted by federal law because FDA already regulates the same ingredients the provision targets. In addition, the complaint alleges that Section 9 is void for vagueness due to its preemption provision. Because businesses cannot be reasonably certain whether their products are subject to the warning label provision, they could “face severe penalties if they guess wrong,” according to the plaintiffs.
  • Finally, the complaint alleges that the provision violates the dormant Commerce Clause because businesses would be forced to change their products or labels throughout the nation to meet Texas’s unique rules, disrupting the national market and creating a confusing patchwork of state laws.
  • The complaint emphasizes that the groups agree that “safe, clearly labeled foods and beverages are of paramount importance” and that Section 9 undermines that goal by compelling inaccurate and misleading free speech.
  • Keller and Heckman will continue to monitor this lawsuit and other developments related to state and federal food labeling requirements.