Court enjoins Texas warning-label law on First Amendment grounds

The United States District Court for the Western District of Texas recently enjoined Section 9 of Texas Senate Bill 25, the Make Texas Healthy Again Act, on the grounds that 1) the law’s requirement for manufacturers to include warning labels on products containing any of 44 identified ingredients likely violates the First Amendment and 2) the plaintiffs, a group of food and beverage trade associations, were substantially likely to succeed on the merits of their claim that Section 9 unconstitutionally compels speech.

Texas is one of the many states that have introduced and/or passed legislation focused on disclosing, warning, or banning certain ingredients commonly found in mass-produced food and beverages. Manufacturers, retailers, and trade associations are encouraged to monitor this trend as similar measures advance in other jurisdictions, and as policy advocates and lawmakers more broadly explore avenues for US food supply reform.

Key provisions

As discussed in a previous Food and Beverage Alert, Section 9 of Texas Senate Bill 25, codified at § 431.0815 of the Texas Health and Safety Code, requires food and beverage manufacturers to place conspicuous warning labels on products containing any of 44 ingredients enumerated in the statute. The listed ingredients include dyes, additives, processing aids, and preservatives that are permitted under existing federal regulations and frequently used for various purposes in the food and beverage industry. The warning label must expressly state: “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.” Manufacturers also must provide the warning label on a website that sells the product in Texas, either their own or that of a retailer.

The court’s analysis

The court held that, under both intermediate and strict scrutiny, Section 9 is substantially likely to violate the First Amendment.

First, the court found that strict scrutiny likely applies because Section 9 is a content-based speech regulation that mandates a government-scripted message. While several amici argued that the deferential test under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio should apply because Section 9 targets commercial speech, the court disagreed. While Zauderer permits the government to compel commercial speech that is purely factual, non-controversial, and not unjustified or unduly burdensome, the court found the warning labels compelled by the statute did not satisfy these requirements. To the contrary, the court held that Section 9’s requirements are “not noncontroversial and Section 9 is not in the narrow category of speech assessed under Zauderer’s special test” (emphasis added).

The court nonetheless acknowledged that “it is unsettled precisely what standard of scrutiny applies to compelled commercial speech” and therefore undertook an intermediate scrutiny analysis under Central Hudson. For a commercial speech regulation to comply with the First Amendment, Central Hudson requires the government to show:

• The speech concerns lawful activities and is not misleading,
• The government has a substantial interest in the regulation,
• The regulation directly and materially advances the substantial government interest, and
• The regulation is narrowly tailored to achieve the government’s desired result.

The court held that, although Texas has a substantial interest in “supporting the health and well-being of its citizens by promoting better ingredients,” Section 9 does not directly and materially support that interest and is not narrowly tailored. The court noted Texas could have, for example, used its own speech through an advertising campaign to promote public health and that the state had not shown that such a campaign would be ineffective. Therefore, the court held, Section 9 likely did not pass intermediate scrutiny.

While enjoining enforcement of Section 9 on First Amendment grounds, the court found that, at this early stage, plaintiffs had not satisfied their burden of demonstrating likely success on the merits of their void-for-vagueness or federal pre-emption challenges.

Outlook and implications

Texas is not alone in pursuing this type of labeling legislation. For example, last year, Louisiana enacted Senate Bill 14, which requires a disclaimer on product labels and websites that discloses the presence of a similar (but not identical) list of 44 ingredients and provides links to additional information about the ingredients. This law is scheduled to take effect in 2028.

The Texas court's decision, and other similar decisions, may provide a roadmap for challenging such laws. For instance, while the Texas federal district court rejected a preliminary challenge under the Due Process Clause that the statute is unconstitutionally vague, the US District Court for the Southern District of West Virginia recently enjoined a West Virginia law banning a variety of food colorings under the “void for vagueness” doctrine, while rejecting an Equal Protection Clause challenge at the preliminary-injunction stage. See Int’l Ass’n of Color Mfrs. v. Singh, No. 2:25-cv-00588, 2025 U.S. Dist. LEXIS 265181 (S.D. W. Va. Dec. 23, 2025).

Accordingly, a multi-faceted approach to challenging similar provisions may be prudent as the litigation landscape evolves.

In the meantime, manufacturers and retailers are encouraged to continue monitoring their labels for compliance with US Food and Drug Administration (FDA) regulations and prepare to adjust their labeling as needed, should any state laws such as Section 9 ultimately take effect.

DLA Piper’s FDA Regulatory and Affirmative Litigation teams remain deeply engaged with industry stakeholders and can advise on the evolving compliance and litigation landscape around food ingredients. For more information, please contact any of the authors.