LAS VEGAS—Today, a customer and a small business owner filed a federal First Amendment lawsuit against the United States Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) over a policy that prevents businesses from truthfully labeling their food products. Customer Michelle Przybocki and Gourmend Foods Founder Ketan Vakil teamed up with the Institute for Justice (IJ) to challenge the regulation that prevents businesses from truthfully labeling their products as low-FODMAP, an acronym for foods that are made with easily digestible ingredients.
The government does not contend that these statements are false. The truthful information that Ketan and other business owners want to provide to customers like Michelle is banned only because it does not appear on the government’s outdated list of allowable “nutrient content claims.” Any nutrient content claims that are not on the list are forbidden.
“The government does not get to decide which facts consumers are allowed to learn,” said IJ Senior Attorney Justin Pearson. “Businesses have the right to tell the truth, and customers have a right to hear that truthful information. Banning factual information isn’t just harmful, it’s unconstitutional.”
In recent years, the low-FODMAP diet has become a popular option for people with sensitive stomachs. Easy to digest, low-FODMAP foods include eggs, meat, almond milk, oats, and quinoa. On the other hand, those on the low-FODMAP diet are encouraged to avoid dairy, onion, garlic, and other foods that can cause digestive discomfort.
Michelle’s digestive issues were so bad she had a near-death experience and had to go on a very strict low-FODMAP diet.
“The federal government is trying to make it even harder for people like me to find the foods that improve my quality of life,” said Michelle. “I just want businesses like Ketan’s to be able to provide me with accurate, important information so that I can make my own informed decisions regarding my health and these essential dietary choices.”
Ketan himself suffered from digestive issues until his doctor recommended that he follow a low-FODMAP diet. The low-FODMAP diet reduced his symptoms, which inspired him to start Gourmend. His goal was to help other people with digestive issues by making it easier to find low-FODMAP foods.
“The low-FODMAP diet worked wonders for me, so I created Gourmend to help other people suffering from similar digestive issues,” said Ketan. “The science is clear – symptoms will decrease if you avoid foods that your body has trouble digesting. For many with gut health issues, that means eating a diet that is low in FODMAPs. Unfortunately, it can be tough for people to know which foods are low FODMAP. The federal government should be encouraging businesses to provide these facts to consumers to help them eat healthier. Instead, this information is banned just because it is not on the government’s preapproved list.”
Ketan began his business two years ago and currently produces chicken broth, beef broth, and seasoning kits. His chicken broth and seasoning kits are regulated by the FDA, while his beef broth is regulated by the USDA. Both agencies follow the same regulation banning low-FODMAP statements, but only the USDA requires that food labels be preapproved before companies can use them. When Ketan attempted to obtain USDA approval for his beef broth label, the USDA discussed the issue with the FDA and then informed him that he could not say that his food is low-FODMAP—even though they know Ketan’s products are factually low-FODMAP and have been lab-tested and certified by the world’s leading certifier of low-FODMAP foods.
The forbidden statements that Ketan wanted to make include:
- “Low FODMAP,”
- “1 serving low in FODMAP,”
- “Low FODMAP certified,”
The reason Ketan isn’t allowed to use these words, even though they’re true? Because the federal government has yet to add low-FODMAP to its outdated list of preapproved statements that businesses are allowed to make on their labels regarding “nutrient content claims.”
“Ketan and Gourmend attempted to do everything the right way and now they’re being punished for it,” said IJ Litigation Fellow Betsy Sanz. “It should not be against the law to tell the truth.”
IJ is the nation’s leading defender of food freedom and has successfully challenged unconstitutional food regulations throughout the country, including the FDA’s and Florida’s bans on using the words “skim milk” to describe pure, additive-free skim milk, Oregon’s ban on advertising lawful sales of raw milk, and Mississippi’s ban on the use of the words “veggie burgers.”