Food Industry Groups Challenge Texas’ Ultra-Processed Warning Label

Overview

Over the past year, state legislatures have been gorging themselves on new laws relating to ingredients in food products sold in their states. Many states have enacted legislation banning certain ingredients, regulating the use of ingredients in food sold or served in schools, and, in Texas’ case, have required warning labels to alert consumers about the specific ingredients in food products.

However, these newly enacted laws are not without a challenge. On December 5, 2025, a group of food and beverage trade associations, including the American Beverage Association, Consumer Brands Association, National Confectioners Association, Food Marketplace, Inc., and The Food Industry Association, filed a lawsuit in the Western District of Texas challenging Section 9 of Texas Senate Bill 25 (SB 25). A week later, on December 12, 2025, these industry groups filed a motion for a preliminary injunction in the case. SB 25, signed into law in June 2025, requires food and beverage manufacturers to include a warning label on products containing any of 44 specified ingredients¹ indicating that those ingredients are “not recommended for human consumption” by authorities in Australia, Canada, the European Union, or the United Kingdom. The law applies to product labels developed or copyrighted on or after January 1, 2027, and imposes civil penalties of up to $50,000 per day for violations. For more information on SB 25, see our July 2025 Advisory.

Key Allegations in the Lawsuit

• First Amendment Violations: Plaintiffs argue that SB 25’s warning label is a content-based regulation requiring manufacturers to include “government-scripted messages” on their products. This, the complaint states, “squarely implicate[s] the First Amendment.” To regulate content-based restrictions, courts require the government to show the regulation is narrowly tailored to achieve a compelling governmental interest. The complaint alleges that SB 25 is neither narrowly tailored nor does it achieve a compelling governmental interest, as it requires manufacturers to convey false and misleading information about ingredients permitted under federal law, rather than directly advancing public health through accurate disclosures. The complaint specifically contends that the mandated warning label wording is false and misleading because some jurisdictions referenced in the label’s language allow the use of certain ingredients subject to regulation under SB 25 in their food products.
• Federal Preemption: According to the complaint, the warning label “would be false or misleading” and require the food industry to decide between violating the Federal Food, Drug, and Cosmetic Act or violating SB 25. The U.S. Food and Drug Administration’s (FDA) regulation of the targeted ingredients is extensive and provides regulatory oversight on how food and beverages should be labeled, the complaint explains. Thus, plaintiffs allege that the warning label requirement will conflict with and undermine federal regulation, creating a patchwork of inconsistent state laws.
• Vagueness: The lawsuit claims that SB 25’s provisions regarding federal preemption are “unconstitutionally vague” because the statute fails to “define [] crucial provisions” and “offers no guidance.” Specifically, the law provides that its provisions will not apply if FDA “imposes conditions on the use of the ingredient,” “determines an ingredient . . . is safe for human consumption,” or federal law “requires a labeling statement relating to ultra-processed or processed foods.” The complaint claims that this vagueness leaves businesses without sufficient guidance to ensure compliance and exposes them to significant penalties.
• Commerce Clause: Under the dormant commerce clause, states generally cannot enact legislation that discriminates or burdens interstate commerce. The plaintiffs allege that SB 25 does exactly that by forcing businesses to alter product labels specifically for Texas, which disrupts uniformity in the national market. The complaint expresses concern with the increasing number of state regulations, noting that it “would result in a cascade of conflicting state requirements, leaving food manufacturers in a regulatory thicket.”

Preliminary Injunction

The motion for preliminary injunction, submitted on December 12, 2025, relies heavily on the First Amendment arguments outlined in the plaintiffs’ complaint. To succeed in obtaining a preliminary injunction, plaintiffs must demonstrate a substantial likelihood of prevailing on the merits, that they will suffer irreparable harm, a favorable balance of hardships, and that an injunction would serve the public interest. The motion first asserts that the industry groups have a strong likelihood of prevailing on the merits, as SB 25 is unlikely to withstand First Amendment review or meet other constitutional requirements, as previously discussed. Next, the plaintiffs assert they will face irreparable damage, including the loss of First Amendment rights, significant expenses related to updating products and labels, and harm to their reputation and goodwill. Finally, the groups emphasize that safeguarding the First Amendment always aligns with the public interest and tips the balance of equities in their favor.

Implications for Industry

If upheld, SB 25 will require manufacturers selling in Texas to either reformulate products or redesign packaging and online disclosures for any product containing the specified ingredients. The law’s broad scope and severe penalties have prompted significant concern regarding compliance costs, reputational risk, and operational disruption. Plaintiffs emphasize that the listed ingredients have been used safely in American foods and beverages for decades, and that uniform, science-based labeling standards are essential for consumer trust and market stability.

Next Steps

The case, American Beverage Ass’n v. Paxton, No. 6:25-cv-00566 (W.D. Tex. filed Dec. 5, 2025), is pending in federal court, and its outcome may have significant implications for food labeling practices nationwide. We will continue to closely monitor these developments.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.