The Government Cannot Ban Food Companies From Telling The Truth

Michelle Przybocki suffers from severe irritable bowel syndrome (IBS). She used to experience extreme pain after she ate. But her suffering is not a medical mystery. Like many others with IBS, Michelle’s body reacts poorly to certain sugars that are often referred to as “FODMAPs” (an acronym for their scientific names).

Michelle’s gastroenterologist recommended that she take up a low-FODMAP diet. This isn’t a trendy weight loss method like Atkins or Keto. You can read more about it on the websites for Johns Hopkins and the Cleveland Clinic. Research shows that a low-FODMAP diet can help many of the more than 33 million Americans who suffer from IBS. But figuring out how to eat a low-FODMAP diet is hard, and the government is making it harder.

Many common foods that are generally considered healthy are high-FODMAP: garlic, onion, apples, and honey. Even more confusingly, some parts of green onions are high-FODMAP, while others are low. This can make it very hard for people to keep to the diet just by reading ingredient labels.

Ketan Vakil also sticks to a low-FODMAP diet, and his struggles to find packaged foods that didn’t cause him problems led him to start his own business. Gourmend Foods makes low-FODMAP broths and spice blends. But Ketan is stuck in a regulatory maze when it comes to letting potential customers like Michelle know about his specialty products.

The U.S. Department of Agriculture rejected the Gourmend beef broth label because “low-FODMAP” is not on the agency’s preapproved list of words and terms that it allows on food labels. Similarly, they won’t allow Ketan to use descriptors like “digestible” or “gut-loving” that would at least hint to his customers that these foods work with their diet.

USDA regulators also talked with their counterparts at the Food and Drug Administration, who confirmed that labels for chicken broth and spice mixes would similarly be illegal. (Yes, different government agencies are responsible for policing beef and chicken broth!)

There’s no real question about whether Gourmend Foods products are safe or healthy. And the government also isn’t saying Ketan can’t put low-FODMAP information on Gourmend Foods labels because it’s false or misleading. (It’s not—all Gourmend products are third-party certified low-FODMAP.) Rather, the government is not allowing low-FODMAP information of food labels simply because such information is not on the agency’s outdated list of preapproved words and terms.

So Ketan is banned from using true words on his food labels, and Michelle is blocked from receiving that information. There is also no telling if or when the agencies may consider adding low-FODMAP information to their list of approved terms. To get the government to expand the list is a process beyond the means of Ketan and most small business owners. It takes years, an army of experienced attorneys, and hundreds of thousands of dollars.

Unless a big food company takes on the costs, it’s unlikely the government will clear the way for low-FODMAP labels; even if it does, Ketan will have lost the business opportunity that comes with being first to market.

But the First Amendment may clear the way for Ketan to provide this useful information to Michelle and other customers. First off, it’s clear that the government cannot ban products from including truthful statements on labels. There was a time when the federal government banned brewers from listing the alcohol content on their beers. The rationale was that consumers may then choose beers with a higher alcohol content.

But the Supreme Court held in a unanimous decision that the ban violated the First Amendment since it withheld truthful information and since the government had other ways it could prevent concerns over the so-called “strength wars.” In a concurring opinion, Justice Stevens denigrated the regulation as “nothing more than an attempt to blindfold the public.”

Second, the First Amendment protects the rights of consumers to receive information. Virginia tried to ban pharmacies from advertising prices of prescription medicines. But after a group of consumers sued, the Supreme Court ruled truthful commercial speech is protected by the First Amendment.

While the government has an interest in preventing and punishing fraud, the First Amendment protects the communication of truth. The government cannot possibly create a comprehensive list of everything that would be truthful to communicate to a consumer. There’s no reason for the government to prevent Michelle and others like her from receiving the true (and extremely helpful!) information that Ketan wants to share.