Issue Page: Weights & Measures - Scales in Restaurants

Weights & Measures
The BBQ Bill - Scales in Restaurants

SB 581 - (Sen. Perry)

TRA's Position

TRA is supporting legislation to further clarify and strengthen the language of the original BBQ Bill and to implement the Attorney General opinion in support of the original bill.

Issue Overview

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 supposed to be registered with the state (along with a fee), so that inspectors from the Texas Department of Agriculture can ensure that they're not tipped in the seller's favor. In addition, the Department requires that each certified scale have a certification sticker be visible to the consumer.  

In 2017 the Texas Legislature passed HB 2029 which carved out registration and certification exemptions for scales “exclusively used to weigh food sold for immediate consumption.” This means that food service establishments that use scales to weigh food for pricing, such as yogurt shops, barbecue restaurants, and salad and sandwich establishments are not required to have their scales registered.

Shortly after passage, the Department of Agriculture, the agency charged with verifying the accuracy of the retailers’ scales, passed rules to nullify the bill, deciding 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, TDA misinterpreted its intent.

The intent, which is supported by the clear language of the bill, merely describes the food sold and exempted from Department weights and measures regulations, and not food limited by the place of consumption. At no point in the legislative process, committee testimony, nor in any draft of the legislation was there language that limited the scope of the legislation to scales used to weigh food for immediate consumption on the premises. In a formal letter, TRA asked TDA to reconsider the adoption of its Rules (12.1 and 12.13), and to eliminate the term “on the premises”.

No changes were made to the agency’s rules and further, TDA asked the Texas Attorney General for a written opinion, which was issued in April of 2018. The Attorney General sided with the authors of HB 2029. “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.”

This legislation is necessary to further clarify and strengthen the language of the original bill and to implement the Attorney General opinion. The bill provides that a commercial scale is exempt from registration and inspection requirements if it is exclusively used to weight food sold ready for immediate consumption regardless of whether the food is consumed on the premises where the food is weighed and sold; and not exempted from sales and use tax. This language will limit the bill’s reach to only those places that sell food ready for immediate consumption and not extended to grocery stores where produce may be sold ready to eat but is exempt from sales tax.

Bill's Intent

The bill provides that a commercial scale is exempt from registration and inspection requirements if it is exclusively used to weight food sold ready for immediate consumption regardless of whether the food is consumed on the premises where the food is weighed and sold; and not exempted from sales and use tax.

This language will limit the bill’s reach to only those places that sell food ready for immediate consumption and not extended to grocery stores where produce may be sold ready to eat but is exempt from sales tax.

Status

Senate Bill 581 was filed by Senator Charles Perry on February 1, 2019.