On January 28, 2026, a judge in the Western District of Texas struck down a Texas law that required labeling for alternative proteins. Specifically, the court determined that SB 664, codified at Tex. Health & Safety Code § 431.0082, was an unconstitutional violation of the First Amendment. This article is the first in a two-part series discussing recent food law cases in Texas.
Background of SB 664
In 2023, the Texas legislature passed a bill that created labeling requirements for “analogue products.” The law defines an analogue product as “a food product derived by combining processed plant products, insects, or fungus with food additives to approximate the texture, flavor, appearance, or other aesthetic qualities or the chemical characteristics of any specific type of egg, egg product, fish, meat, meat food product, poultry, or poultry product.” For example, a vegan burger, derived from black beans and created to look like a traditional beef burger patty, would meet the analogue definition. Specifically, SB 664 considered an analogue meat, poultry, egg or fish product misbranded if it did not bear a term on its label that clearly communicated to the consumer its contents. The law included several permissible terms, such as “analogue,” “meatless,” “plant-based,” or “made from plants,” and clarifies that a similar term that clearly communicates the product’s contents could be used. For clarification purposes, these collective terms will be referred to as “qualifying terms” for the remainder of this article.
Further, SB 664 specifies that the qualifying term must be in “prominent type equal to or greater in size than the surrounding type and in close proximity to the name of the product.” Close proximity is defined as either 1) immediately before or after the product’s name, 2) in the line of the label immediately before or after the line containing the name of the product, or 3) within the same phrase or sentence containing the name of the product.
The law also created labeling requirements for “cell-cultured products.” These products were defined as foods “derived by harvesting animal cells and artificially replicating those cells in a growth medium in a laboratory to produce tissue.” Similar to analogue products, the law requires cell-cultured products to bear a label with a qualifying term that clearly communicates the product’s contents to the consumer. To learn more about similar state laws related to alternative proteins, click here to view NALC’s Alternative Protein Laws State Compilation.
Background of the Case
On August 31, 2023, SB 664 was challenged in court. The charges were brought by the Animal Legal Defense Fund and The Good Food Institute on behalf of Turtle Island Foods Inc. d/b/a The Tofurky Company (Tofurky), a plant-based meat company. Later, the Plant Based Food Association (PBFA), a trade association that represents plant-based meat manufacturers and sellers, joined the lawsuit. Tofurkey and PBFA, or “the Plaintiffs,” claim that SB 664 is unconstitutional because 1) it is preempted by federal law, 2) it violates the Supremacy Clause, 3) it violates the dormant Commerce Clause by discriminating against out-of-state producers of meat products, 4) it violates the dormant Commerce Clause by imposing excessive burdens on interstate and foreign commerce, 5) it violates the Fourteenth Amendment Due Process Clause, and 6) it violates the First Amendment.
In October of 2024, the court entered an order on this case that dismissed Texas Governor Abbott as a defendant and clarified that the plaintiffs did not have the standing to challenge SB 664’s labeling requirements for cell-cultured meat products. The court made this determination because Tofurky does not sell cell-cultured products and PBFA does not have members who sell cell-cultured products. However, the order allowed the lawsuit to continue against Texas Attorney General Paxton, Executive Commissioner of the Texas Department of Health and Human Services Commission and Commissioner Shuford of the Commissioner of State Health Services, and determined that the plaintiffs did have standing to challenge the analogue product labeling requirements. To read more about the 2024 order, click here.
The Case
In its 2026 order, the court determined that Tex. Health & Safety Code § 431.0082(d-1) was unconstitutional and ordered that Texas was prohibited from enforcing it. Section 431.0082(d-1) is the portion of SB 664 that created labeling requirements for “analogue products.” Specifically, the court granted Defendant’s motion for summary judgement. Summary judgment is a pretrial motion where a party asks a judge to enter a verdict for one party without a full trial. Summary judgment is appropriate when 1) there is no genuine issue of material fact, and 2) the movant is entitled to judgement as a matter of law.
First Amendment Claim
The court found that “there was no material dispute of fact that the labelling requirements of SB 664 violate the First Amendment,” and granted summary judgment on that claim alone without analyzing the other five claims. This means that because the court determined SB 664 violated the First Amendment, they did not need to assess the other claims brought by the plaintiffs.
The First Amendment of the US Constitution protects commercial speech that is not misleading and not related to unlawful activity. Commercial speech is speech that promotes some type of commerce. Here, the labels on Tofurky or other PBFA member’s food products would count as commercial speech. To learn more about the First Amendment and food labels, click here to read NALC article “Focus on Food: Understanding Labeling and the First Amendment.”
The test that courts use to determine if commercial speech is improperly restricted by a state actor was established in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980). The Central Hudson test includes the following four parts – 1) is the speech misleading or does it concern unlawful activity, 2) is there a substantial government interest, 3) does the regulation advance the government interest asserted, and 4) is it narrowly tailored to achieve the interest.
First, the court looked at whether the speech prohibited by SB 644 would be classified as misleading. Speech is considered misleading when it deceives or is inherently likely to deceive, but statements that have the potential to mislead are protected under the First Amendment. Here, the plaintiffs demonstrated that Tofurky’s labels clearly indicate its products are meat substitutes and that consumers are not misled by their labels. Specifically, the court references a survey conducted by the plaintiff’s experts where Texas consumers correctly identified plant-based products with 96% accuracy by looking at images of their labels. Further, the court considers the expert evidence that the rate of accuracy was not higher when the plant-based products were labeled in accordance with SB 664. The court additionally notes that the defendants did not offer any contradicting evidence but only relied on conclusory assertions that the plaintiff’s labels “mislead traditional meat-eating consumers into buying their product.” Thus, the court finds that plaintiff’s speech is not misleading.
Next, the court looked to see if SB 664 targeted a substantial government interest. For this element to be met, the government must show that its reason for regulating speech is related to a substantial government interest or goal. Here, the defendants claim that the government interest is to ensure that consumers “understand the nature of the products they are purchasing.” However, the court states that the defendants did not supply evidence of consumer confusion related to plant-based meat labels. For example, the court notes that the Texas Department of State Health Services has no record of consumer complaints about accidentally purchasing a plant-based meat alternative. Further, the court observes that Texas and federal law both already regulate false and misleading food labels through their “misbranding” laws and could enforce those existing laws to address these violations. Accordingly, the court determines that SB 664 does not target a substantial government interest.
The court then assesses whether the restrictions in SB 664 “directly advance the governmental interest asserted.” To succeed on this element, the defendants would have to show that their restrictions will actually help achieve the government goal or interest. Here, the court determines that the defendants have not shown evidence of consumer confusion, nor have they shown how SB 664’s restrictions would mitigate the confusion. Therefore, the defendants have failed to meet the burden on this element.
Last, the court will determine if the commercial speech restrictions are “narrowly tailored to achieve the desired object.” This element looks at the burden placed on regulated companies seeking to follow the restriction and asks whether it is extensive or too heavy a burden to bear. Here, the defendants have the option of enforcing existing “misbranding” laws for food labels, so the court determines that the government can achieve its interest in a less restrictive way. Further, the court offers examples of how other states, like Iowa, have passed similar, less restrictive laws that require the use of a qualifying term, but do not mandate it to be the same size as the product’s name. Thus, the court determines that the defendants do not meet the final element of the Central Hudson test.
The court found that the State of Texas did not meet the requirements of the Central Hudson test so Section 431.0082(d-1) was held to be unconstitutional as applied to the plaintiffs under the First Amendment.
Facially Invalid or Invalid as Applied to Plaintiffs
Finally, to appropriately determine if SB 664 is unconstitutional under the First Amendment, the court must determine if the law is facially invalid, or invalid as applied to the Plaintiffs. This means that the court had to decide if the law would be unconstitutional in all applications, or if it is just unconstitutional in its application against these specific plaintiffs. This determination has two parts – 1) courts must assess the scope of the state law and 2) compare with the law’s permissible and impermissible applications. The court determined that there is no material dispute that this law’s scope applies to plant-based food manufacturers and the non-misleading commercial speech on their labels. Then, the court determined that the “constitutionally impermissible applications of the law substantially outweigh the constitutionally permissible ones.” Accordingly, the law is found invalid in a majority of its applications, and its challenged provisions should be facially enjoined. This means that Texas will be completely barred from enforcing Tex. Health & Safey Code § 431.082(d-1).
Conclusion
A judge in the Western District of Texas found that Texas’ labeling laws for analogue products are an unconstitutional violation of the First Amendment. Thus, Texas is now prohibited from enforcing this law. However, since it was determined earlier in the lawsuit that the plaintiffs did not have standing to challenge the cell-cultured product labeling laws, those may still be enforced for now. Next week part two of this mini article series on Texas Food Law Litigation Updates will be published and will address the latest order in a lawsuit related to Texas’ ban against cell-cultured products.
Click here to read about other litigation related to state alternative protein laws.