Fired up over barbecue carve-outs

Photo by Callie Richmond for The Texas Tribune

Well, the Texas Restaurant Association (TRA) is at it again.

If you remember, during the legislative session earlier this year, the big restaurant lobbyists convinced the Texas Legislature and the governor to approve a bill that would exempt, or “carve out,” barbecue joints from consumer protection laws regulating the use of scales to weigh food. Despite a huge public outcry against this surprise attempt to weaken laws meant to protect consumers, the lobbyists got House Bill 2029 passed by the Legislature and signed by the governor.

You know what? They’re still not happy. They’re mad as hornets at me and the Texas Department of Agriculture for writing rules that implement the bill they wanted passed so badly.

See, the Legislature passes laws but state agencies must write rules to actually put into action what legislators passes. That’s the way state government works. So even though I opposed the bill, my agency did what it was required to do and wrote rules to implement HB 2029.

Problem is, the restaurant lobbyists apparently didn’t read their own bill. As passed by the Legislature and signed by the governor, the new law states that the only scales exempted from consumer protection laws are those used to weigh food sold for “immediate consumption.”

Now, any good Texan knows that most barbecue joints sell their food for takeout too. How many times have you taken a load of brisket, ribs and sausage home to the family? Don’t forget the banana pudding!

So, according to the actual language in the bill, most barbecue restaurants are not exempt.


Accordingly, my agency wrote rules to carry out what the bill required. The TRA apparently now feels that I and the Texas Department of Agriculture should have implement the law as “intended” rather than as it is written.

As commissioner, it is not my job to guess what the Legislature meant. It is my job to implement the laws they pass — as written.

When HB 2029 was being considered by the Legislature, I met with the TRA and suggested changes. None were made. After the bill passed and we started the rulemaking process, my agency staff reached out to the bill authors and the TRA for their input. No response. We published our rules and opened them for public comment. Guess how many comments we got from the TRA. None.

I even provided a 45-day grace period after the new rules took effect before we began to assess any penalties on businesses. As soon as this grace period ended, the TRA took its complaint to the media.

So here’s the deal. The big restaurant lobbyists were so eager to get their “carve out” from consumer protection laws, they apparently never bothered to read the language or consult the agency that would be responsible for implementing the new law.

However, to try to address their concerns, I have requested the Texas Attorney General review our rules to ensure there is no conflict with the language of HB 2029. I am confident the rules will stand.

The TRA will have a chance to fix the issue during the new legislative session in 2019. I will be there again to oppose it. Until then, I must implement the law as written. While some barbecue restaurants are now exempt from regulation of their food scales, most are not.

My agency will continue to enforce consumer protection laws wherever and whenever possible, in the strongest possible terms.

That is my responsibility to the people of Texas.

Sid Miller

Texas agriculture commissioner