IJ Sues USDA and FDA to Challenge Food Label Censorship

The government should not get to determine what facts consumers are allowed to know about the products they buy. That may sound like common sense, but it’s a fact that evidently escapes the U.S. Department of Agriculture and the Food and Drug Administration, both of which prohibit food manufacturers from disclosing indisputably true and useful information about their products to consumers. But now a Nevada consumer and a New York food entrepreneur have teamed up with IJ to fight back against this unconstitutional censorship.  

Michelle Przybocki of Las Vegas suffers from severe irritable bowel syndrome (IBS). IBS is a common condition that affects tens of millions of Americans. Michelle’s case almost killed her. And very often when she ate, it hurt—badly. Her doctor told her that if she wanted to avoid pain, she would have to follow a diet that is low in certain sugars that are hard to digest, called a low-FODMAP diet. FODMAPs are found in common foods like onions and garlic, and Michelle quickly discovered that it was nearly impossible to locate low-FODMAP packaged foods.  

That’s where Ketan Vakil comes in. Ketan, who lives in New York City, also suffers from digestive issues and follows a low-FODMAP diet. He too struggled to find low-FODMAP foods. But like so many IJ clients, Ketan is an entrepreneurial guy. He saw an opportunity and formed his business, Gourmend Foods, to bring delicious low-FODMAP foods to people who need them.  

By summer 2022, Ketan was producing and selling spice blends and chicken broth. All the labels included the same truthful information: The products are “low-FODMAP,” “digestible,” and certified as such. Then Ketan decided to sell beef broth, too—and that’s when he learned that the scarcity he thought to be a market failure was in fact caused by government censorship.  

For a host of bureaucratic reasons, the FDA regulates Ketan’s spice blends and chicken broth, but the USDA regulates beef broth. But unlike the FDA, the USDA requires food makers to submit their labels for preapproval before using them. Ketan therefore submitted his beef broth label featuring the indisputably true information that the broth is low-FODMAP to the USDA. 

The USDA rejected it. Why? Because low-FODMAP information is not on the government’s outdated list of preapproved “nutrient content claims.” Any nutrient content claims not on the list are banned, even if they are verifiably true and no matter how helpful the information would be to consumers. And the only way to get a new term on the list is to go through the yearslong process of federal administrative rulemaking. 

But as IJ has shown time and again in our litigation, the First Amendment protects the right of entrepreneurs like Ketan to make truthful claims about their products and the right of consumers like Michelle to receive that information. That is why Ketan and Michelle have joined with IJ to sue the USDA and the FDA for violating their First Amendment rights. Together, we will put an end to the headaches—and stomachaches—caused by these agencies’ censorship of truthful product labels. 

Betsy Sanz is an IJ attorney.