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The Texas Citizens Participation Act (TCPA) and commercial speech

On Behalf of | Jun 2, 2023 | Business Litigation

This blog previously discussed the federal Consumer Review Fairness Act (CRFA) that protects a consumer’s right to give an honest review online about goods or services purchased without being sued by the company for negative remarks made.

Texas has a similar law called the Texas Citizens Participation Act (TCPA) that applies to certain statements made about businesses. The TCPA prohibits a business from filing a lawsuit in retaliation for a negative remark or statement made by another party that is or could be published and made available to consumers.

Under the TCPA, a party can have a retaliatory lawsuit dismissed if the lawsuit was an attempt to hush up or intimidate the party who made the negative statement. However, the TCPA does not cover retaliatory lawsuits filed by one business against another business for statements related to a commercial transaction that is or could be made available to patrons.

The TCPA is not without controversy. A case involving Texas supermarket giant H-E-B takes the issue of business statements and the TCPA all the way to the Texas Supreme Court.

H-E-B and the TCPA

The case involves Texas supermarket giant H-E-B and disinfecting wipes produced by Maverick International Ltd.

What started off as a failure to deliver the wipes escalated into allegations by Maverick of commercial disparagement based on statements made by H-E-B in an email sent to the San Antonio Express-News regarding the pending litigation.

Maverick filed a lawsuit, claiming that H-E-B’s statements amounted to an attempted “leak” of the lawsuit to Maverick’s detriment. H-E-B moved the district court to reject Maverick’s claims stating that it was illicit retaliation in violation of the TCPA.

The district court and later the appellate court sided with Maverick that the statements made by H-E-B amounted to commercial speech, and thus were not protected by the TCPA.

H-E-B has now petitioned the Texas Supreme Court to hear the case, arguing that such a broad interpretation of the commercial speech exception would stifle any speech made by a retailer that could potentially be publicized. The case is still pending.

It will be interesting to see how this case is resolved. How the TCPA is applied to commercial speech is relevant to many businesses who regularly issue statements to the press. Whether this practice amounts to a violation of state law or is protected free speech remains to be seen.