On February 11, 2026, a federal district court in Texas enjoined Texas Attorney General Ken Paxton from enforcing Section 9 of Texas Senate Bill 25. Section 9 would 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, propylparaben, and others) and being sold in Texas to bear a warning label, subject to certain exceptions. The court granted the plaintiffs’ motion for a preliminary injunction.
As discussed in our previous client alert, four trade associations—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 various grounds. The court found that the plaintiffs demonstrated a substantial likelihood of success on the merits of their claim that Section 9 violates the First Amendment by unconstitutionally compelling speech. While the court briefly discussed the various legal standards of scrutiny that might apply to the commercial speech restriction, it ultimately concluded that even if only intermediate scrutiny applied, the speech restriction would not meet the landmark Central Hudson test. Although the court acknowledged that Texas had a substantial interest in “supporting the health and well-being of its citizens by promoting better ingredients in foods sold in Texas,” it concluded that imposing the Section 9 warning requirement would not directly and materially advance the state’s substantial interest and was not narrowly tailored to address that interest. The court observed that the state could have spoken itself by conducting an advertising campaign but has not done so or shown that such campaign would be ineffective in promoting public health. Accordingly, the court found that “the means chosen to advance that interest do not pass constitutional muster.”
While the court determined that the plaintiffs were likely to succeed on the First Amendment claim, it found that they were unlikely to succeed on their vagueness and federal preemption claims at this time. The plaintiffs’ vagueness argument related to the confusing preemption provision in Section 9, which we’ve previously discussed. The court stated the plaintiffs “have not shown that the law is so unclear that those in the food industry could not understand when the preemption clause would be triggered.” Thus, at this stage, the plaintiffs did not show the law is unconstitutionally vague, but the court noted that a more developed record at a later stage of litigation would better position it to evaluate the vagueness claim.
Regarding plaintiffs’ argument that the Section 9 warning is preempted by federal law, the court also found plaintiffs were not likely to succeed at this time. It noted the underlying historical presumption against preemption absent clear direction from Congress that a federal law was meant to supersede state law, which it did not find with respect to Section 9 in the Federal Food, Drug, and Cosmetic Act or the Nutrition Labeling and Education Act.
Notably, however, the court did not address at this stage whether the Section 9 warning is false or misleading, leaving open the possibility of a conflict preemption finding, because manufacturers could be forced to choose between complying with the state warning labeling requirement and federal prohibitions on false or misleading labeling.
The order expressly enjoins the Texas Attorney General from enforcing only against the four plaintiff trade associations and its members. Nonetheless, we do not expect the state would attempt to enforce against companies that are not members of those associations. This enjoinment is an interim order and is not a final ruling. Absent a settlement, the case will proceed on the merits, where the court may render a final ruling at the summary judgment stage. The Attorney General has not indicated whether he intends to appeal the preliminary injunction decision.
As some other states have begun to consider similar labeling requirements, the court’s decision in this case may temper the momentum of those efforts.
If you have any questions concerning the material discussed in this client alert, please contact the members of our Food, Beverage, and Dietary Supplements practice.
Back
