Consumer, Food Producer Appeal Lower Court’s Ruling Upholding Government Ban on Labeling Foods as Easy to Digest

SAN FRANCISCO—Can the government censor food labels that are factually true? Today, a customer and small business owner, and their attorneys from the Institute for Justice (IJ), filed an appeal asking the 9th U.S. Circuit Court of Appeals to overturn a lower court’s decision dismissing a challenge to such censorship.  

Michelle Przybocki is a Las Vegas resident who suffers from serious stomach issues, which got so bad she nearly died. Ketan Vakil, the owner of Gourmend Foods, suffers from similar stomach issues. Both learned about a diet, called the low-FODMAP diet—an acronym for foods made with fewer of certain hard-to-digest sugars—which helped them with their stomach issues. Ketan started Gourmend with the goal of making it easier for people like him and Michelle to find these foods. However, he quickly learned that the term “low-FODMAP” was not on a government list of preapproved terms, and thus the United States Agriculture Department (USDA) and Food and Drug Administration (FDA) would not allow him to label his products as “low-FODMAP,” even though it is factually true.  

“Gourmend has a constitutional right to talk truthfully about its products, and customers like Michelle have a constitutional right to obtain that information,” said IJ Senior Attorney Justin Pearson. “The government does not get to decide which facts customers are allowed to learn.” 

The low-FODMAP diet has grown in popularity for people with sensitive stomachs. But because different parts of the same food can have different levels of FODMAPs, the ingredient list alone isn’t sufficient for customers at the grocery store to know whether a product is low or high in FODMAPs. For example, there are parts of green onions that are very low-FODMAP and parts that are very high-FODMAP. 

“Shopping on a strict low-FODMAP diet can be incredibly time-consuming and difficult,” said Michalle. “If Gourmend, and other companies like them, were allowed to label their foods as low-FODMAP, it would be much easier for me to find foods I know will not cause me debilitating stomach issues.”   

In March 2023, Michelle and Ketan filed a federal First Amendment lawsuit against the USDA and FDA, challenging the label censorship. However, in July 2024, the lower court sided with the government, leading to today’s appeal.