Beginning January 1, 2027, Texas Senate Bill 25 (TX SB 25), which was signed into law on June 22, 2025, could require human food products containing any of 44 specified ingredients (including FD&C colors, bleached flour, bromated flour, azodicarbonamide, butylated hydroxyanisole (BHA), butylated hydroxytoluene (BHT), potassium bromate, and propylparaben) and being sold in Texas to bear a warning label, contingent on compliance timelines and potential preemption considerations discussed in more detail below. The mandated warning label states: “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.” Violators may be subject to a fine not to exceed $50,000 per day for each distinct food product in violation of the requirement. TX SB 25 contains a preemption provision stating that a warning will not be required for ingredients that FDA or USDA determine by regulation to be safe for human consumption, but the provision is not clearly worded in the context of the bill such that its impact isn’t entirely obvious based on the language alone.
On December 5, 2025, four plaintiffs—the American Beverage Association, the Consumer Brands Association, the National Confectioners Association, and FMI the Food Industry Association—filed suit in federal court challenging the warning requirement (Section 9) as unconstitutional on four grounds.
- First, the plaintiffs argue that the labeling requirement violates the First Amendment by compelling businesses to speak and to “repeat inaccurate and misleading messages.” The plaintiffs assert that the warning requirement is misleading because it suggests that foreign jurisdictions have categorized the covered ingredients as “not recommended for human consumption” when they have not. Additionally, the plaintiffs explain the warning requirement misleadingly suggests that the covered ingredients are all unauthorized for inclusion in food and beverage products in all of the foreign jurisdictions the warning references when in fact only some of the ingredients are unauthorized in some of the jurisdictions. The plaintiffs claim that the law fails all four prongs of the applicable First Amendment commercial speech test because “it’s misleading, it doesn’t concern a substantial governmental interest, it doesn’t directly advance a substantial governmental interest, and it’s more extensive than necessary to serve any substantial governmental interest.”
- Second, the plaintiffs argue the warning requirement is preempted by federal law, as “Congress designed a system to ensure a uniform, nationwide approach to food labeling” and this law directly conflicts with and frustrates Congress’s objectives. Section 9 would require food manufacturers to place false and misleading warnings on their product labels, placing them squarely in conflict with the requirements of the Federal Food, Drug, and Cosmetic Act (FDCA), which deems a food to be misbranded if “its labeling is false or misleading in any particular.” 21 U.S.C. § 343(a)(1). Moreover, the plaintiffs note that Congress established a comprehensive system for labeling artificial colors, artificial flavors, and chemical preservatives, for which FDA has implemented detailed regulations. As the ingredients covered by Section 9 are significantly comprised of such ingredients, the state law targets ingredients extensively regulated by federal law. The plaintiffs observe further that Congress passed the Nutrition Labeling and Education Act in 1990 amending the FDCA in part to establish uniform national standards for food labeling. TX SB 25 thus stands as an obstacle to achieving Congress’s objectives in this regard.
- Third, the plaintiffs argue the warning requirement is void for vagueness, because, due to undefined language in the statute which may be subject to various interpretations, including the preemption provision, “[b]usinesses can’t know with any reasonable certainty whether their products fall within or outside the scope of Section 9’s warning requirement.”
- Fourth, the plaintiffs claim the warning requirement violates the dormant Commerce Clause by “forcing businesses across the country to change their products or their labels to meet Texas’s unique rules.”
The plaintiffs request (1) that the court declare that the warning requirement violates the First Amendment, Fourteenth Amendment, and the Commerce Clause, and is preempted; and (2) that the court enter an injunction preventing the state from enforcing the warning requirement against plaintiffs and their members.
Covington will continue to monitor the development of this lawsuit as well as state ingredient disclosure laws and related litigation and keep our clients and contacts updated.
If you have any questions concerning the material discussed in this client alert, please contact the following members of our Food, Beverage, and Dietary Supplements practice.
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