What ABA v. Paxton Means for State Food-Warning Label Laws

By Sonam Rustagi, FLPC research assistant and HLS class of 2028

On February 11, 2026, the U.S. District Court for the Western District of Texas preliminarily enjoined enforcement of a key provision of Texas Senate Bill 25 (SB 25), a broad state food and nutrition law that, among other things, requires manufacturers to place warning labels on foods containing certain additives that remain lawful for use in food under federal law. The ruling in American Beverage Association v. Paxton (ABA v. Paxton)  bars the Texas Attorney General from enforcing the warning label requirement against the plaintiff trade associations and their members while the litigation proceeds. SB 25 does much more than regulate labels, but the litigation, and this post, focus on the warning label requirement.

The case arises from an increasingly common tension in food regulation. States, consumer advocates, and political groups have expressed growing concern about rising rates of diet-related disease and about the many food additives that remain permitted in the U.S. food supply but face restrictions abroad. Some states, including California and West Virginia, have responded by banning specific additives outright. Texas policymakers chose to flag ingredients through labels instead of banning them, on the theory that consumers deserve to know which products contain substances other countries have restricted so they can make more informed choices. Manufacturers, meanwhile, argue that warnings referencing foreign regulations can mislead consumers about the safety of ingredients that remain lawful in the United States.

What SB 25 Requires

Enacted in 2025, SB 25 is a comprehensive food safety and nutrition bill, with Section 9, the provision at issue, requiring foods containing any of 44 specified ingredients to display the following warning:

The requirement applies to food labels developed or copyrighted on or after January 1, 2027. The listed ingredients include dyes, preservatives, and other additives such as Yellow 5, propylparaben, and titanium dioxide.

The Constitutional Standards at Issue

Food and beverage trade associations, including the American Beverage Association, challenged the warning requirement in ABA v. Paxton, arguing that it violates the First Amendment and is preempted by federal law. On the First Amendment claim, the plaintiffs argued that the warning does not merely disclose facts about foreign regulations but instead conveys a contested message about ingredient safety. The plaintiffs also argued that the warning is factually inaccurate as applied to certain listed ingredients. As the complaint accurately notes, at least some of the 44 ingredients are not actually banned or restricted in all, or even any, of the four named jurisdictions. Because SB 25 attaches a warning label to ingredients instead of prohibiting their use, the case raises the question of whether a state can compel a business to carry a health-related message on its own products.

Courts answer that question using different frameworks. For compelled commercial disclosures, the starting point is Zauderer v. Office of Disciplinary Counsel (1985), in which the Supreme Court held that governments may require businesses to disclose “purely factual and uncontroversial” information in commercial settings or products, provided the disclosure is reasonably related to a legitimate government interest and is not unduly burdensome. Courts have relied on Zauderer to uphold disclosures such as restaurant calorie postings and country-of-origin labels. New York City’s sodium warning for chain restaurants offers a close analog. In 2009, the Second Circuit upheld the sodium warning under Zauderer, finding the warning factual and uncontroversial based on the weight of the scientific evidence. Compelled health warnings can satisfy Zauderer even when industry contests the underlying message.

If a compelled disclosure is found to fall outside Zauderer, courts apply more demanding review. Restrictions on commercial speech are generally evaluated under the intermediate scrutiny test from Central Hudson Gas & Electric Corp. v, Public Service Commission (1980), which asks whether the government has a substantial interest, whether the regulation directly advances that interest, and whether it is no more extensive than necessary. Strict scrutiny, which requires a compelling interest and the least restrictive means, is the most demanding standard and typically applies to content-based or viewpoint-based regulation of speech, which is regulation that targets speech because of what it says or who the speaker is.

The question in ABA v. Paxton is which framework governs. If the warning is purely factual and noncontroversial, Zauderer applies. If it misstates foreign regulatory treatment of some ingredients, or if its message is controversial, it faces closer scrutiny for some, or all the substances included in the law.

The District Court’s Decision

The district court chose not to apply Zauderer, and instead found that strict scrutiny likely applies because SB 25 compels a government-scripted message, making it content-based, and that Texas, which focused on intermediate scrutiny, did not make a clear case that SB 25 survives strict scrutiny. Only then did the court turn to Zauderer. Noting that Texas cited the case but “did not make an affirmative argument that the deferential test under Zauderer should apply,” Judge Albright held in a single sentence that Zauderer does not apply because the warning is “not noncontroversial.” It never reached the question of whether the warning is purely factual, and elsewhere in the opinion it declined to engage with the plaintiffs’ claim that the warning would be false or misleading.

The content-based speech rationale the court puts forth in order to justify applying strict scrutiny is difficult to limit. Every disclosure mandate dictates what a business must say, so every disclosure is content-based in a literal sense. Even if Zauderer did not apply, the more natural next step for a commercial product label would have been Central Hudson, not strict scrutiny.

In its Central Hudson analysis, the court found that Texas has a substantial interest in “promoting better ingredients in foods sold in Texas,” but held that the warning does not directly advance that interest and is not narrowly tailored enough. The court agreed with the plaintiffs that Texas could have alternatively communicated its own message through an advertising campaign. However, unlike an advertising campaign, a warning at the point of purchase allows consumers to identify and avoid products containing flagged ingredients, and the prospect of carrying the warning gives manufacturers a reason to reformulate, which reduces exposure across the food supply even for consumers who never read the label. There are hundreds of thousands of food products on store shelves, and no state agency has the capacity to identify, product by product, which ones contain any of the 44 listed ingredients. A labeling requirement places that task on manufacturers, who know their own formulations, and delivers the information at the moment of purchase.

Looking Ahead

In February 2026, nine days after the injunction issued, the Texas Department of State Health Services finalized its rule implementing SB 25. The agency stated that ingredients considered GRAS or determined to be safe by the FDA or U.S. Department of Agriculture are not subject to the warning requirement. Because many of the listed ingredients fall into those categories, the rule may substantially narrow the law’s practical effect and address some of the concerns raised in the litigation.

Texas also appealed the district court result in March 2026 and the case is now before the Fifth Circuit. In its appellate brief filed in August 2026, Texas argues, among other issues, that the warning is a factual and uncontroversial commercial disclosure subject to Zauderer and that the law would survive Central Hudson in any event. Texas’s Zauderer argument depends on reading “not recommended” to include a foreign jurisdiction’s mere neutrality toward an ingredient, a reading that may be difficult to square with a label beginning “WARNING,” but the appeal at least gives the Fifth Circuit the opportunity to engage with the Zauderer framework that the district court passed over.

The case could also shape future efforts by states seeking to regulate food ingredients through disclosure requirements rather than outright bans. Notably, the court was not persuaded by the plaintiffs’ preemption claims that SB 25 is likely preempted by the federal prohibition on misleading labeling or by the Nutrition Labeling and Education Act. As policy action on food additives continues, ABA v. Paxton illustrates the challenges states face in shaping their own food and nutrition landscapes. Courts evaluating those efforts will need to balance consumers’ access to information against the First Amendment limits on commercial speech.

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