Herman: Weighing in on barbecue scales

2:33 p.m Thursday, Nov. 2, 2017 Opinion
The so-called Barbecue Bill exempts from state inspection and registration scales “exclusively used to weigh food sold for immediate consumption.” FRAN HUNTER / FOR SMITHVILLE TIMES

The battle over the Barbecue Bill (a legislative bill relating to barbecue, not a barbecue-related guy named Bill) now is on Texas Attorney General Ken Paxton’s plate.

This is House Bill 2029, approved this year by the Legislature, signed into law — despite opposition from Texas Agriculture Commissioner Sid Miller — by Gov. Greg Abbott and officially in effect as of Sept. 1.

The bill’s language is distinctively legislatese but the impact and intent seem clear: The bill exempts from state inspection and registration scales “exclusively used to weigh food sold for immediate consumption.” The bill won unanimous OK in the Senate and passed with one nay in the House.

READ: Sid Miller calls barbecue deregulation effort ‘horse hockey’

That approval came in the wake of Miller’s so-called Operation Maverick, which stepped up enforcement of scale inspections at various businesses, including barbecue joints. Under the Texas Agriculture Code, such scales have to be registered annually with the Agriculture Department, and the registration certificate had to be prominently displayed in plain sight of consumers, which means the scales have to be in plain sight of consumers.

HB 2029 became known as the Barbecue Bill, because barbecue often is sold by weight. Frozen yogurt, too. But Barbecue Bill just sounds a lot more Texan than the Frozen Yogurt Bill. Ditto for the Salad Bar Bill.

After the bill was approved, Miller enacted rules that bill sponsors and the Texas Restaurant Association say substantively undo the measure. That’s what Paxton now must sort out as a result of an official opinion request submitted by Miller in wake of the complaints about his new rules.

Here’s the rub: While the new law exempts scales used to weigh “food sold for immediate consumption,” the ag department’s new rule limits the exemption only to scales used to weigh food “sold for immediate consumption on the premises.” Those last three words reduce the number of businesses that would be exempt.

In September, the restaurant association complained to Miller in a letter charging his rules “are in direct conflict with the clear and unambiguous language of the statute.” Exactly where, the association asked, are the premises?

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“Do the premises include a common area of a food hall/court of a food truck park? Do the premises cover the café in a hospital where the consumer takes the food to a waiting area or a private room? A picnic table in the parking lot? What about the situation where someone buys food and begins consuming it just outside the front door of the building?”


More recently, bill sponsors Sen. Charles Perry, R-Lubbock, and Rep. J.M. Lozano, R-Kingsville, in a letter also signed by 43 other lawmakers, complained to Miller that his “on the premises” provision “goes beyond the legislation’s original intent” and amounts to burdensome regulation.

“At a time in our global economy when food security is dictated by razor-thin commodity margins, it is imperative that we find every opportunity to avoid increasing prices,” the lawmakers told Miller in an Oct. 17 letter. “To put it more simply, we must strive to ensure that every citizen can afford to feed their family.”

They asked Miller to revise his rule. The request sparked Miller’s six-page request for Paxton’s official opinion, a request that includes discussion of the Merriam-Webster Dictionary definition of “immediate.”

And Miller argues that the restaurant association wants to put “the private interest of restaurants above the general public interest by expanding the HB 2029 exemption to ‘hotels, delis, mobile vendors or other like places of business’ and to all food sold by such businesses, provided the food does not require further preparation by the purchaser prior to consumption.”

Back in May, Miller urged Abbott to veto the bill. The commish wrote that arguments that the state inspections are overly burdensome for businesses were “horse hockey.”

“As Ronald Reagan said, ‘Trust, but verify,’” Miller wrote. “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. It only costs a BBQ restaurant $35 per year to register that scale. That’s about the same cost as a couple of pounds of brisket. Cowboy logic says that this isn’t about the fee.”

Back then, County Line owner Skeeter Miller told my colleague Asher Price there are about 40 scales at County Line’s 10 locations and that the Agriculture Department requires him to buy scales from certified dealers, something that pumps up the price.

Miller wrapped up his opinion request by defending his rules while saying he was taking “very seriously” the concerns raised by sponsors Perry and Lozano in claiming the rules violate the Barbecue Bill.

What say you, Attorney General Paxton?

(And how many self-restraint points do I get for getting through this without referring to anybody’s beef about the bill or calling anybody a meathead?)