Texas Barbecue Bill Battle Continues with New Attorney General Opinion

Texas Attorney General Ken Paxton has weighed in on the “Barbecue Bill,” a law passed last year by the Texas Legislature that allows some retailers to not register the scales they use to weigh food. Some background, if you haven’t been following this story: Texas Agriculture Commissioner Sid Miller, citing consumer protection, created something he called Operation Maverick, where he enforced a state law requiring food retailers like barbecue restaurants and yogurt shops to have certified scales in the sight of customers and to register those scales with the state.

The registration cost is $35, but the cost of purchasing certified scales can be much higher. The law has been mostly politely ignored until Miller began using it. So the Texas Restaurant Association worked with Representative J.M. Lozano (R-Kingsville) and other state legislators to pass a law exempting small businesses that use scales to weigh food sold for immediate consumption, meaning if you go buy a pound of brisket from your local barbecue joint for dinner, the scale that meat is weighed on doesn’t have to be registered with the state.

It’s a bit of relief for small, local restaurants where the margin of profit tends to be small and every bit of money saved on overhead helps. However, Miller argues, it works against existing state consumer protection laws by allowing small business owners to cheat their customers.

In an editorial in The Texas Tribune, Miller encouraged a policy of trust but verify, as he said, “I trust my local BBQ guy, but I still want to see that when I buy a pound of sausage I’m getting a pound of sausage.” He asked Texas Governor Greg Abbott to veto the measure after the “Barbecue Bill” passed; the governor declined to do so.

Since the Texas Department of Agriculture (TDA) oversees the scale inspections and the implementation of the new law, which went into effect in June 2017, Miller determined that “immediate consumption” meant food that would be consumed on the premises. In other words, if you got your brisket to go, the restaurant would still be on the hook for registering the scale.

This determination set up another round of the barbecue battle, with the law’s proponents stating the Miller was misinterpreting their intent. Miller asked the Attorney General to offer his official view, which Paxton issued on April 23 in a nonbinding opinion that stated the agency went too far with its interpretation.

In his opinion, Paxton says, “The language of the statute requires that the vendor sell food that a consumer can eat immediately, but it does not mandate where or when the purchaser will eat that food. Nor does it require that the seller provide a space for the consumer to eat.”

The Houston Chronicle noted that Miller is considering the attorney general’s opinion and quoted TDA spokesman Mark Loeffler as saying, “He [Miller] will be meeting with our legal staff at immediately to plan next steps moving forward.”

While the “Barbecue Bill” is a big deal for local restaurants, it’s also likely to be a consideration for some in the upcoming November elections. Miller is running for reelection; his opponent in the primary accused him of waging a war on barbecue, but Miller still claimed 56 percent of the vote, easily winning the primary.
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