Texas’s SB 25 Capitalizes on the MAHA Moment in America
It’s rare that Texas beats California to pass industry-disrupting health legislation, but that seems to be happening with SB 25. Citing concerns about rising healthcare costs in the state (and defying heavy industry lobbying against the bill) Texas lawmakers have crafted SB 25 to attempt to address the link between processed and ultra-processed food and health. The bill requires warning labels for a number of food ingredients that are already banned abroad but currently allowed in the food supply in the U.S. It also tackles nutrition education and promotes research on the link between diet and public health. Below we summarize the bill’s main provisions and consider the implications for Texas and beyond.
Warnings Required for Certain Ingredients
Health advocates commonly point out that the U.S. Food and Drug Administration allows certain food additives that are banned in other countries. While SB 25 does not ban ingredients, it mandates that, after January 1, 2027, a food manufacturer provide a warning on its label if the product contains one or more of a list of 44 ingredients that are banned in Australia, Canada, the EU, or the UK. The warning must be prominent and reasonably visible, and 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 warning requirement does not apply to food prepared in restaurants or retail establishments, meat, poultry, or processed egg products, nor does it apply to pesticides or other agricultural chemicals used in the production, storage, or transportation of produce.
The state’s Attorney General is empowered to enforce the requirement by seeking injunctions and civil penalties against noncompliant manufacturers.
Federal Law May Preempt the Requirement
The statute provides its own preemption section, and provides that its warning requirement is nullified as to any ingredient if the FDA or USDA issue a law or regulation that:
- prohibits one of the 44 ingredients;
- “imposes conditions on” the use of the ingredient (such as requiring a warning);
- determines that an ingredient is safe for human consumption; or
- requires a labeling statement relating to ultra-processed or processed foods.
If the statute withstands legal challenges, manufacturers will have to either create specially-labeled products specifically for Texas, stop using the ingredient, or simply label the ingredient on all products. Given the size of the Texas market, the latter two options may be more cost effective in the long run.
Legal Challenges Likely
Legal challenges to the labeling requirements can be expected towards the end of this year. Manufacturers are likely to invoke principles of federal preemption (only the FDA can regulate warnings on food), First Amendment (infringes on their free speech by compelling speech), and possibly the dormant Commerce Clause (interferes with interstate commerce).
This statute is likely to withstand any challenge claiming interference with interstate commerce thanks to the Supreme Court’s decision in National Pork Producers Council v. Ross, 598 U.S. 356 (2023). There, the Court upheld California’s Proposition 12, which requires that all pork sold in the state have been raised with a certain amount of space in their confinement pen. The Court reasoned that because the law applies equally to California and out-of-state pork producers, it does not violate the dormant Commerce Clause of the U.S. Constitution.
Similarly, the Texas law applies equally to Texas-based, as well as out-of-state manufacturers. Thus, a dormant Commerce Clause challenge would may be futile given current precedent. Nonetheless, manufacturers are sure to bring their best challenges in efforts to avoid the spread of such statutes, which could potentially lead to patchwork labeling and content regulations across the country.
Nutrition Advisory Committee Created
The legislature has also established the Texas Nutrition Advisory Committee “to develop nutritional guidelines for residents of the state.” The work of this committee will be important to follow, as its guidelines will inform the bolus of the greatly expanded nutritional education requirements described further below.
The Committee will be composed of seven appointed members, including at least:
- one expert in metabolic health, culinary medicine, lifestyle medicine, or integrative medicine;
- one licensed physician certified in functional medicine;
- one member representing the Texas Department of Agriculture;
- one member representing a rural community;
- one member representing an urban community; and,
- one pediatrician specializing in metabolic health.
And, in a Joe Rogan-esque statutory jab at conflicts of interest in health policy-making, the following individuals are NOT eligible to be appointed: someone who owns or controls an ownership interest in a food, beverage, dietary supplement, or pharmaceutical manufacturing company, or someone who is related within the third degree to such an individual. And, before accepting appointment, nominees must disclose all past or existing affiliations with a food, beverage, dietary supplement, or pharmaceutical manufacturing company or any other affiliation that could reasonably create a conflict of interest with the goals of the advisory committee.
These goals are as follows:
- examine the impact of nutrition on human health and examine the connection between ultra-processed foods, including foods containing artificial color and food additives, and the prevalence of chronic diseases and other chronic health issues;
- provide an independent review of scientific studies analyzing the effects of ultra-processed foods on human health;
- provide education on the effects of ultra-processed foods on human health; and
- develop and maintain dietary and nutritional guidelines based on the consensus of available scientific studies and information concerning diet and nutrition.
Every year the advisory committee must provide a report that includes a summary of relevant scientific studies, nutritional guidelines incorporating the findings, and any other recommendations it considers appropriate based on new scientific studies.
Nutrition Education Requirements Expanded
Finally, SB 25 expands educational requirements related to health. It expands requirements that schools provide opportunities for daily physical activity, requires high schools to provide an elective course on nutrition and wellness, and requires institutions of higher education to provide the opportunity for associate’s and bachelor’s degree program students to take a course in nutrition. All of these courses must be based on guidelines set by the Nutrition Advisory Committee.
The bill even limits funding to medical schools or other health-care related schools unless they require their students to complete a nutrition curriculum based on the recommendations of the Nutrition Advisory Committee.
Further, physicians, physician’s assistants, nurses, and dieticians seeking renewal of their license from the Texas Medical Board must complete continuing medical education regarding nutrition and metabolic health, based on the guidelines of the Nutrition Advisory Committee.
Final Thoughts
SB 25 capitalizes on the MAHA moment in America and the nation’s enhanced focus on the link between diet and our notoriously high incidents of chronic disease compared to other countries. Policy-making to address such issues at the federal level moves slowly, and oftentimes states (our “laboratories of democracy”) can be a testing ground for new ideas such as the ones in SB 25. With a states’-rights-leaning Supreme Court, and after the Pork Producers decision, states are more empowered than ever to tackle national issues in their respective legislatures.
Of course, not everyone agrees with Texas’ approach. Critics argue that the warning statement is misleading, since some ingredients are restricted–but not banned–abroad. Some health advocates believe the bill is a missed opportunity to address bigger contributors to chronic disease, such as food deserts and aggressive marketing tactics.
We do see that efforts such as these impact the market, however. Some manufacturers have already committed to removing certain artificial dyes from their products ahead of RFK’s original timelines, for instance. It remains to be seen, however, how far manufacturers are willing to be pushed. Further, given the many different approaches to health and nutrition, the Nutrition Advisory Committee’s recommendations surely won’t please everyone.
Regardless, before this particular experiment gets fully underway, however, it will have to survive the oncoming legal challenges.
If you’d like to know more about how SB25 or other state or federal-health related laws impact your business, please reach out to our Regulated & Emerging Industries Practice Group to set up a call.
Author: Christina Sava
