Attorney General Ken Paxton sides with restaurants, retailers on enforcement of "Barbecue Bill"

A nonbinding opinion issued Monday by Attorney General Ken Paxton continues a battle between lawmakers, restaurants and Agriculture Commissioner Sid Miller over the regulation of scales used to measure food.

Under state law, roughly 17,725 retailers, including grocery store chains, airlines, coffee houses, laundries and brisket purveyors, are required to use scales to measure what they sell to the public. Those scales are also supposed to be registered with the state so inspectors can ensure that they're not tipped in the seller's favor.

A law passed during last year’s legislative session, however, carved out exemptions for scales “exclusively used to weigh food sold for immediate consumption,” meaning places such as yogurt shops and barbecue joints won't have to get their scales registered.

Miller called the law “horse hockey.” In a Texas Tribune editorial, Miller wrote, “as Ronald Reagan said, ‘Trust but verify.’ 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.”

Miller, one of the state’s most vocal opponents of the “Barbecue Bill,” unsuccessfully asked Gov. Greg Abbott to veto the measure because, he said, it “gives places like barbecue joints a license to steal by exempting them from state consumer protection laws designed to protect Texans like you and me.”

Miller’s agency, which was charged with verifying the accuracy of the retailers’ scales, decided that businesses would only be exempt from regulation if they weighed foods to be eaten “on the premises.” But the barbecue bill's authors argued that in determining how to implement the law, Miller’s agency misinterpreted its intent. So Miller asked Paxton for a written opinion.

Paxton sided with the barbecue joints in his opinion Monday, saying Miller’s agency went too far.

“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,” Paxton wrote. “Nor does it require that the seller provide a space for the consumer to eat.”

Mark Loeffler, a spokesperson for Miller, said the commissioner had read Paxton’s opinion and “will take it under advisement. He will be meeting with our legal staff at TDA immediately to plan next steps moving forward.”