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The Battle Over Texas BBQ

Texas barbecue culture runs deep. Not only does the state boast almost double the number of barbecue restaurants of any other state, but especially over the past 20 years, the almost folkloric intrigue of barbecue culture has inspired books and blogs alike laying out reviews, chronologies, and manifestos on the topic. The latest chapter in the Texas meat-cooking custom revolves around the regulation of scales used to weigh barbecue.

Pitting the Texas Department of Agriculture against barbecue joint owners, the debate can be traced back to the Department of Agriculture’s responsibility to regulate weights and measures in particular commercial transactions. Transactions involving scales used to weigh food sold to consumers fall under this umbrella, but historically the Department has not enforced certifying and registering the scales used at restaurants.

When Commissioner Sid Miller took office in 2014, things changed. Shortly after stepping into his tenure, Miller launched “Operation Maverick,” aimed at enforcing certification and registration requirements. Within an eleven-month span, over 1,000 retailers received notice to comply with the regulations. But because the law had never been enforced before, Miller’s directive presented some restaurant owners with substantial costs associated with redesigning their pay stations and service areas.

The 2017 “BBQ Bill”

These events gave rise to House Bill 2029, colloquially referred to as the “BBQ Bill” in the 85th legislative session. The bill exempted retailers preparing food for “immediate consumption”, including barbecue restaurants and frozen yogurt shops, from the Department of Agriculture’s regulation of scales. Believing that the bill “gives places like barbecue joints a license to steal by exempting them from state consumer protection laws,” Commissioner Miller asked Governor Greg Abbott to veto it. Nonetheless, the Governor declined, and the BBQ Bill became law in September 2017.

Heated Debate Over the Bill’s Interpretation

Shortly after, the Department of Agriculture proceeded to interpret the BBQ Bill’s exemption for food prepared for “immediate consumption” as applicable only when the prepared food is not sold for take-out. Under this interpretation, any restaurant allowing take-out orders would still be subject to the Department of Agriculture’s weights and measures registration and certification requirements.

In rebuttal, the Texas Restaurant Association and forty-five Texas legislators sent a letter to Commissioner Miller urging him to square the Department of Agriculture’s interpretation of the BBQ Bill with the legislative intent behind its passage. Miller proceeded to seek clarification from Texas Attorney General Ken Paxton on this matter. In an advisory opinion to Miller, Paxton concluded that a vendor exempt from the Department of Agriculture’s scale regulations must sell food that a consumer can eat immediately, but where a purchaser must eat the food–whether on the premises or elsewhere–is not important. In other words, the attorney general advised that the Department of Agriculture stop enforcing its weights and measures regulations on certain types of restaurants, like barbecue joints.

New Bill Beefs Up Language

Because even after the attorney general opinion the Department of Agriculture has continued enforcing its weights and measures regulation on barbecue and frozen yogurt restaurants, new bills have made it into the Texas legislature this session aiming to chop Commissioner Miller’s interpretation of the law once and for all. Companion bills SB 581 and HB 2223 have been introduced in each house of the Texas legislature. They aim to clarify that a commercial scale used to weigh food sold for immediate consumption is exempt from registration and inspection requirements regardless of whether the food it weighs is eaten on or off of the premises of sale. Additionally, the bills make clear that such scales are still subject to sales and use tax.

In a recent development, HB 2223 passed the House on April 2nd and was considered in public hearing in the Senate’s Agriculture Committee on April 15th. Should the Senate look favorably on this bill, a likely prospect given its passage of the first BBQ Bill last legislative session, there is a reasonable chance that it will eventually be adopted into law.

A Food Fight Fit for Court?

Given the traction this issue has received in the legislature, Texas barbecue companies probably have no reason to worry in the long-term. In the meantime, however, the Department of Agriculture may continue to issue citations to barbecue joints for failing to register their scales. Treading lightly by attempting to comply as much as possible certainly won’t hurt.

Notwithstanding, should your business be issued a citation from the Texas Department of Agriculture for a violation of the Department’s interpretation of its weights and measures rule, you are probably in a good position to protest it. Attorney General Paxton stated in his advisory opinion that the Department of Agriculture’s interpretation would not likely not hold up in court. In line with this message, we at Cobb and Counsel would be happy to deliver a message to the Department of Agriculture on your behalf: Don’t mess with Texas BBQ.

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