Issue Page: Weights & Measures - Scales in Restaurants

Weights & Measures
The BBQ Bill - Scales in Restaurants

SB 581 - (Sen. Perry) - HB 2223 - (Rep. Frullo)

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 are accurate. In addition, the Department requires that each certified scale have a certification sticker visible to the consumer.  

In 2017 the Texas Legislature passed HB 2029 which eliminated the registration and certification requirements 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 no longer required to register or certify their scales.

Shortly after passage, the Department of Agriculture passed rules to significantly narrow the bill, deciding that businesses would only be exempt from regulation if they weighed foods to be eaten “on the premises.” The bill's authors argued that in determining how to implement the law, TDA misinterpreted its intent by focusing on the place of consumption rather than the type of food sold. TRA asked TDA to reconsider the adoption of the rules and to eliminate the term “on the premises”.

TDA asked the Texas Attorney General for an opinion in 2018. The Attorney General sided with the authors of HB 2029 and held that the Department’s rules would be invalid if challenged in court. The opinion stated that “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. 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 2017 legislation 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.

HB 2223 is supported by the Texas Restaurant Association, Texas Hotel & Lodging Association, Texas Retailers Association, and the Texas Food & Fuel Association

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

 House Bill 2223 was filed by Representative John Frullo on February 21, 2019, passed the House and the Senate unanimously, and is on the way to the Governor for signature (updated May 14).