The First Amendment does not allow the government to decide which facts consumers are allowed to know. Yet the federal government is preventing tens of millions of Americans with sensitive stomachs from receiving the information that they desperately need to alleviate their symptoms. The information is undisputedly true but is banned from being provided on food labels merely because it does not appear on the government’s outdated list of preapproved statements.
The banned information would let consumers know that the foods are low in the specific types of sugars that are the most difficult to digest. Doctors routinely instruct people with digestive issues to avoid these sugars because eating difficult-to-digest foods exacerbates their symptoms. There is even an acronym for the difficult-to-digest sugars: “FODMAP” (fermentable oligosaccharides, disaccharides, monosaccharides, and polyols). But the government’s ban on telling consumers which foods are low-FODMAP makes it almost impossible for consumers with digestive issues to find the right foods to eat.
Michelle Przybocki and Ketan Vakil are among those harmed by this law. Michelle’s digestive issues almost killed her, and she would not be alive today but for low-FODMAP foods. Yet she has been forced to spend ridiculous amounts of time piecing together a low-FODMAP diet because the government is standing in her way.
Like Michelle, entrepreneur Ketan Vakil suffers from digestive issues. When he saw how difficult it was to determine which foods were low FODMAP, he started a business to provide low-FODMAP foods to individuals with digestive issues. But then the U.S. Department of Agriculture (USDA) informed him that a federal law banned providing this information on food labels—not because such labeling would be false, but merely because it is not included on the government’s list of preapproved “nutrient content claims.” However, even attempting to update the list would take years of fighting and far more money than Ketan’s small business has.
Michelle and Ketan have teamed up with the Institute for Justice to file a First Amendment lawsuit in federal court challenging the USDA’s and U.S. Food and Drug Administration’s (FDA) censorship of low-FODMAP food labels. Victory will mean that tens of millions of Americans will finally be able to identify which foods will help them avoid debilitating pain, and it will remind the federal government that censorship hurts consumers and is unconstitutional.
Managing Attorney of the Institute for Justice Florida Office
Communications Project Manager
Senior Paralegal and Office Manager (FL Office)
Get in touch with the media contact and take a look at the image resources for the case.Dan King Communications Project Manager [email protected]
“Low FODMAP” just means easy to digest.
Tens of millions of Americans suffer from digestive issues. For instance, irritable bowel syndrome (“IBS”) alone affects 10-15% of the American population 1 —that’s 33 to 50 million people. Studies have shown that up to 86% of patients report significant improvement of their IBS symptoms when they eliminate certain sugars from their diet. 2 Such sugars are referred to as “FODMAPs” (fermentable oligosaccharides, disaccharides, monosaccharides, and polyols). For many people, following a low-FODMAP diet is the key to avoiding debilitating pain. That is why a low-FODMAP diet is frequently recommended by doctors to people who suffer from IBS and other intestinal issues. 3
Though interest in low-FODMAP foods has increased dramatically in recent years, finding them can be a challenge. This is because most low-FODMAP foods are not labeled as low FODMAP. Consumers are therefore forced to sift through ingredient lists in an often-futile attempt to determine whether a packaged food contains ingredients that have these particular sugars.
Unbeknownst to most consumers, the lack of useful information on food labels has been caused by the government. In fact, the government literally bans this information from being provided, although the manner of enforcement varies depending on the agency. 4 This ban has nothing to do with the veracity of this mainstream, helpful, factual information. Instead, the information is banned simply because it does not appear on the government’s outdated list of preapproved “nutrient content claims.” Even attempting to place new information on the government’s list is ridiculously cumbersome and beyond the means of most business owners, as it takes multiple years, an army of attorneys, and hundreds of thousands of dollars (or more).
Michelle and Ketan struggle to determine which foods are low FODMAP.
Michelle Przybocki is a speech therapist from Las Vegas. A few years ago, Michelle nearly died from digestive complications. She experienced extreme pain after she ate, so her doctor told her to follow a low-FODMAP diet. Michelle committed to doing so but found it incredibly difficult. She scoured food labels to no avail. She discovered that the words “low FODMAP” typically do not appear on food labels even when the foods actually are low-FODMAP, and ingredient lists do not provide enough specificity. For example, one part of a green onion is low-FODMAP while other parts are not, and labels almost never distinguish between the two.
This caused huge problems in Michelle’s life. Her symptoms were debilitating, and she lost weight because she was scared to eat. Eventually, she was able to piece together enough of a low-FODMAP diet to regain her strength, but her quality of life would be far better if the information she desperately seeks were not banned by the government for no good reason.
Ketan Vakil is an entrepreneur who lives in New York City. A few years ago, his doctor told him to follow a low-FODMAP diet. Like Michelle, Ketan had a terribly difficult time identifying low-FODMAP foods. He also has an MBA from New York University, so when he saw the huge amount of unmet demand for low-FODMAP foods, he sprang into action. Ketan developed his own low-FODMAP broths and spice blends, and started his small business, Gourmend Foods, to help people like him. Little did Ketan know that this “market failure” was caused by the government.
The government bans helpful, factual information on food labels for no good reason.
Food makers like Ketan face a regulatory maze when it comes to their labels. Different agencies have jurisdiction over the labeling of different foods, even though all food labels are supposedly restricted by the same regulations. For instance, seasoning mixes and chicken broth are regulated by the FDA, but beef broth is regulated by the USDA. Even more confusingly, the FDA enforces the labeling rules in a different way than the USDA: The USDA requires that food makers get their labels preapproved, while the FDA does not (instead, FDA regulators send letters to sellers after discovering that a label has already been breaking the rules).
Ketan has been including the verifiably true low-FODMAP information on his chicken broth and spice blend labels without incident. But when he expanded his product line to include beef broth, he knew that he was required to submit the label for preapproval to the USDA.
Ketan included the same low-FODMAP information on his beef broth label, so he was surprised when the USDA regulators informed him that they could not approve his beef broth label because of the low-FODMAP statements. They also told him that there was nothing he could do to fix these statements other than to remove them entirely, as the problem was an outright ban on this type of factual speech. In the process, the USDA regulators also discussed Ketan’s labels with their counterparts at the FDA, who confirmed that this indisputably truthful speech was banned because it was not on the preapproved list.
As a result, Ketan’s beef broth label does not mention that the broth is low FODMAP—the very reason why he is selling it in the first place. Furthermore, now that FDA regulators are aware of Ketan’s low-FODMAP chicken broth and spice blend labels, Ketan fears a crackdown on those labels too.
The terms Ketan is not allowed to include on his labels include:
- “Low FODMAP,”
- “1 serving low in FODMAP,”
- “Low FODMAP certified,”
The First Amendment protects food labels.
Michelle desperately needs access to the truthful, factual information that Ketan (and undoubtedly other business owners) want to provide. Yet the government’s default response is to say “no” until such time in the distant future (which may never come) when this information finds its way onto the government’s list of preapproved statements. That is not the way the First Amendment is supposed to work. As the Supreme Court has explained, “[i]f the First Amendment means anything, it means that regulating speech must be a last—not first—resort.” 5
When it comes to labels, the Supreme Court has also held that the government is not allowed to ban businesses from providing “truthful, verifiable, and nonmisleading factual information.” 6 For example, Rubin v. Coors Brewing Co. involved a challenge to a federal ban on breweries listing the alcohol content on their beer labels. 7 The government’s logic was that if consumers knew this information, then they might use it to choose the beers that have higher alcohol content. 8 But the Court ruled against the government and said the ban was unconstitutional because it blocked truthful speech. 9 Here, the government’s low-FODMAP ban is no less offensive to the First Amendment.
Furthermore, the First Amendment protects the rights of consumers like Michelle to receive information. For instance, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., consumers challenged a ban on pharmacies advertising their prices. 10 The Supreme Court ruled the ban unconstitutional, finding that the First Amendment protects both the speaker and the recipient of information. 11 This is because government censorship hurts consumers, and that is precisely what the federal government’s low-FODMAP ban is doing.
The information that Ketan wants to communicate, and Michelle wants to receive, is verifiably true, factual, and not in any way misleading. This means that the First Amendment does not allow the government to censor it. That is why Michelle and Ketan have joined forces with the Institute for Justice to bring this federal lawsuit.
The Plaintiffs are Michelle Przybocki, Ketan Vakil, and Ketan’s business, Gourmend Foods, LLC.
The Defendants are the U.S. Department of Agriculture (the “USDA”) and the U.S. Food and Drug Administration (the “FDA”).
Michelle and Ketan are asking the court to declare that the federal government’s low-FODMAP food label ban is violating their First Amendment rights and to enjoin the USDA and FDA from continuing to enforce it.
The Litigation Team
The attorneys on this case are Institute for Justice Senior Attorneys Justin Pearson 12 and Paul Sherman, 13 along with Institute for Justice Litigation Fellow Betsy Sanz. 14
About the Institute for Justice
The Institute for Justice (IJ) is the national law firm for liberty. IJ is the leading advocate for food freedom 15 and has successfully challenged unconstitutional food regulations across the country. For example, IJ defeated the FDA’s and Florida’s bans on using the words “skim milk” to describe pure, additive-free skim milk, 16 Oregon’s ban on advertising lawful sales of raw milk, 17 and Mississippi’s ban on the words “veggie burgers.” 18 IJ has also victoriously challenged numerous restrictions on cottage food sellers 19 and countless anti-competitive restrictions on food trucks and street vendors around the nation. 20