Texas and Louisiana Enact Laws Requiring Warning Labels and QR Code Notices for Food Ingredients

The developments in Texas and Louisiana are in line with the statements from leadership at the U.S. Department of Agriculture (USDA) and Department of Health and Human Services (HHS) encouraging states to serve as “laboratories of innovation” when it comes to food policy.³  The rise of the “Make American Healthy Again” (MAHA) movement has seen state legislative activity ramp up dramatically, and these two newest warning laws follow a string of newly enacted state laws in California, West Virginia, Virginia, and more recently Texas⁴ and now Louisiana, banning food ingredients or color additives generally or in foods served in schools. 

Texas SB 25

Ingredients that trigger a warning requirement under SB 25 include certain color additives (e.g., Blue 1 & 2, Green 3, Red 3, 4, & 40, Yellow 5 & 6, titanium dioxide), certain preservatives (e.g., BHA, propylparaben), certain emulsifiers (e.g., DATEM), lye, and bleached flour, among others. See the appendix for more details. The warning must:

• be printed in a font size “not smaller than the smallest font used to disclose other consumer information required by [FDA];”
• be placed in a “prominent and reasonably visible location;” and
• have “sufficiently high contrast with the immediate background to ensure the warning is likely to be seen and understood by the ordinary individual under customary conditions of purchase and use.”

As mentioned above, the warning requirement applies to food product labels developed or copyrighted on or after January 1, 2027.  Although the law does not expressly require the warning statement to appear on the label, as a practical matter, the law requires manufacturers (rather than retailers) to ensure compliance, which is best accomplished with an on-pack warning statement. For online sales, the manufacturer or, to the extent the manufacturer provides information on the required warning to the retailer, the retailer must post the warning on their website or otherwise communicate the information to consumers. The law exempts foods prepared, served, or sold in restaurants and retail establishments; drugs and dietary supplements; and products regulated by the U.S. Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS).

Importantly, the legislation includes a preemption clause that would invalidate the Texas warning requirement in the event a federal law, or a Food and Drug Administration (FDA) or USDA regulation (1) addresses one of the listed ingredients and prohibits, imposes conditions on, or determines that it is safe for human consumption, or (2) imposes a mandated warning statement on processed or ultra-processed foods. The preemption provision raises a number of significant questions of interpretation, which should be discussed with legal counsel.

The new Texas law also establishes an advisory committee, comprised of seven members appointed by the governor, including at least: one expert in metabolic health, culinary medicine, lifestyle medicine, or integrative medicine; one licensed physician certified in functional medicine; one member representing each the Texas Department of Agriculture, a rural community, and an urban community; and one pediatrician specializing in metabolic health. The committee does not need to include a nutrition scientist or public health expert.  The law requires the committee to:

• “examine the impact of nutrition on human health and examine the connection between ultra-processed foods, including foods containing artificial color and food additives, and the prevalence of chronic diseases and other chronic health issues;”
• “provide an independent review of scientific studies analyzing the effects of ultra-processed foods on human health;”
• “provide education on the effects of ultra-processed foods on human health;”
• “develop and maintain dietary and nutritional guidelines based on the consensus of available scientific studies and information concerning diet and nutrition”; and
• prepare an annual report that includes “(1) a summary of the scientific studies; (2) nutritional guidelines incorporating any new scientific findings; and (3) any other recommendations the advisory committee considers appropriate based on new scientific studies.”

Louisiana SB 14

Notice for Food Ingredients:  Under SB 14, starting January 1, 2028, foods containing specified ingredients must bear a QR code that links to a webpage “under the control of the manufacturer.” The law requires a statement adjacent to the QR code “that informs the consumer that additional ingredient information can be accessed by scanning the code.” The QR code, in turn, must link to a webpage that states: “NOTICE: This product contains [insert ingredient here]. For more information about this ingredient, including FDA approvals, click HERE.”

This notice must be in a “prominent location” on the webpage, linking to FDA's “web page regarding food chemical safety,” which likely refers to the agency's Food Chemical Safety webpage available at https://www.fda.gov/food/food-ingredients-packaging/food-chemical-safety.  While this page does not identify any of the ingredients listed in the law, links embedded on the page contain information about some of these ingredients.

The ingredients that require QR code disclosures in Louisiana largely overlap with those that require warning labels under Texas SB 25, with some differences. Specifically, aspartame, sucralose, and acesulfame potassium require disclosure in Louisiana but not Texas, while DATEM, ficin, and titanium dioxide require disclosure in Texas but not Louisiana.  More detail is in the appendix.  Foods prepared and labeled in retail food establishments, as well as FDA-regulated drugs and dietary supplements, are exempt. For products sold at retail as a multiunit package, the QR code is required only on the outer container.

Notice on “Seed Oils”:  SB 14 also requires any food service establishment “that cooks or prepares food using seed oil” to display the following disclaimer on their menu or other visible location: “Some menu items may contain or be prepared using seed oils.” For purposes of this requirement, “seed oil” includes canola or rapeseed oil, corn oil, cottonseed oil, grapeseed oil, rice bran oil, safflower oil, soybean oil, and sunflower oil.

Ingredients Prohibited in School Foods:  Additionally, beginning with the 2028-2029 school year, SB 14 prohibits public schools and nonpublic schools that receive state funds from serving foods containing any of the following 15 ingredients: Blue 1 & 2, Green 3, Red 3 & 40, Yellow 5 & 6, azodicarbonamide, BHA, butylated hydroxytoluene (BHT), potassium bromate, propylparaben, acesulfame potassium, aspartame, and sucralose.

Next Steps

As noted above, both laws present significant First Amendment and preemption issues, particularly because many of the ingredients are not in fact banned in other countries, meaning the warning is both untrue in many cases, and misleading.  We are available to discuss strategies to respond to the new legislation and will continue to monitor regulatory and legislative developments on food ingredients and color additives. Please contact us if you have any questions.

Appendix

Ingredients Subject to Warning or Disclosure Under Texas SB 25 and Louisiana SB 14

Authored by Veronica Colas and Rebecca Popkin.