Low-FODMAP Labeling: FDA, USDA, and Unconstitutional Censorship

February 14, 2024

By: Alexandria Belton, Vol. 22 Staff Writer

An Indigestible Blow to First Amendment Protection

The Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) are attempting to unconstitutionally censor “non-misleading factual” labeling of foods low in “fermentable oligosaccharides, disaccharides, monosaccharides and polyols” (low-FODMAP). So why is this important, it’s just food labeling, right? Wrong. FODMAP foods are related to an intolerance to “carbohydrates” or “sugar” contained in certain foods. Ingesting these sugars induces gastrointestinal inflammation; digestive disorders such as Irritable Bowel Syndrome (IBS) become triggered, leading to “abdominal discomfort, distention, bloating, fullness, nausea, and or pain.”­­­­

Speakers are entitled to communicate lawful information, including labeling that promotes verified “low-FODMAP” foods. Thus, food labels asserting as low-FODMAP are deserving of First Amendment protection. Food consumers are entitled to access non-misleading factual food labels that include:

  • Allergan Declaration – major food allergens (milk, egg, fish, tree nuts, wheat, peanuts, soybeans, sesame, crustacean, shellfish) 
  • Ingredient Statement – food ingredients
  • Nutrition Facts ­– serving size, mandatory nutrients (sugars, fat, sodium, etc.)
  • Statement of Identity – legal or common name of the food
  • Net Quantity of Contents – the amount of food in a package

So, what’s all the grumble about?

The FDA and USDA are venturing beyond the permitted bounds of commercial speech restriction.  Przybocki v. US Department of Agriculture is a pending federal First Amendment lawsuit against the USDA and FDA. Gourmend Foods founder, Ketan Vakil is attempting to challenge the FDA’s and USDA’s ban on Low-FODMAP labeling by arguing that Gourmend’s labeling is (1) “factual and non-misleading”, (2) supported by extensive lab testing, and (3) has received low-FODMAP certification. The FDA and USDA oversee label approval thus all labels must be preapproved prior to their use.

 The Nutrition Labeling and Education Act of 1990 (NLEA) authorizes label claims that typifies foods based on nutrient content. However, labels classified as “nutrient content claims” are subject to regulations and restrictions enforced by the FDA; therein lies the problem. Gourmend’s LOW-FODMAP labeling is inconsistent with the FDA’s preapproved “nutrient content claims” thus the USDA refuses to grant its approval.

An Appetite for Protection: Central Hudson

Speech consistent with a commercial transaction is considered “commercial speech.” Food labeling such as “low-FODMAP” supplies information to consumers to facilitate informed buying. Central Hudson Gas & Electric. v. Public Service Commission, establishes a four-part test for determining if commercial speech is protected and the extent of constitutional protection. The Central Hudson Test applies intermediate scrutiny[AY1]  (laws are constitutional only if they directly advance a substantial government interest and are not broader than necessary to serve that interest); the constitutionality of the government’s regulation depends on all four factors being met. The four factors are:

  1. Whether the speech is protected: speech must be non-misleading and relate to lawful activity.
  2. Whether the government has a substantial interest in controlling the speech: the regulation must directly concern and advance the government’s “substantial interest” (protection of public health, safety, and welfare).
  3. Whether the regulation advances the substantial government interest: the regulation must directly aid in the government achieving their interest (regulation advances protection of public health, safety, and welfare).
  4. Whether the government’s regulation is necessary to serve that substantial interest: regulation must be narrowly tailored (written precisely, least restrictive) to advance the government’s interest. If a less restrictive means exists, the regulation is not narrowly tailored.

Applying Central Hudson to Low-FODMAP Labeling Censorship

First, Gourmend’s labeling is “factual and non-misleading” thus overcoming the initial question of “Does this speech warrant First Amendment Protection?” Second, the government must show that they have a substantial interest in regulating low-FODMAP labeling; substantial interest is a pressing reason (protects public health, safety, and welfare) and not merely a hypothetical assertion. Protection of public health, safety, and welfare may be a legitimate objective. However, if Gourmend’s labeling is “factual and non-misleading”, what then necessitates public protection?

Third, censoring certified low-FODMAP labeling does little to advance public health.  In Pearson v. Shalala, the court held,  that the FDA unconstitutionally restricted labeling on dietary supplements. The labels produced by a supplement manufacturer contained statements asserting unsubstantiated health claims.  The FDA failed to advance a substantial government interest; label censorship was not the best means to address unfounded health claims. Finally, the FDA’s censorship of Gourmend’s products is likely unnecessary to serve “a substantial interest.” Meaning, the FDA must show that their means (label censorship) reasonably achieve their end: consumer protection (public safety, health, and welfare).

Similarly, to Pearson, in South Mountain Creamery v. FDA the FDA’s censorship of “skim milk” failed to pass constitutional muster. A creamery owner labeled their product “skim milk.” Unsurprisingly, the FDA found the label of “skim milk” (purely labeled as skim milk) inconsistent with their labeling of “skim milk” (the label included skim milk and additional additives). The owner’s First Amendment right was upheld, and the FDA was subsequently blocked from enforcing unconstitutional censorship.

Conclusion: A Need for Transparency

The Central Hudson Test provides the means by which the FDA and USDA may limit food labeling. However, low-FODMAP labeling infringes on Gourmend’s right to freedom of speech. Gourmend Foods wishes to promote consumer awareness and consumers wish to receive the truth. Perhaps, a spoonful of transparency is just what the doctor ordered. First Amendment protection proves to be a digestible remedy after all.