Major Ruling in Favor of True Food Labels as Federal Appeals Court Revives First Amendment Lawsuit Against FDA and USDA

ARLINGTON, Va.—A federal appeals court revived a First Amendment lawsuit from a customer and small business owner seeking to provide true information on food labels. The United States Department of Agriculture (USDA) and the U.S. Food and Drug Administration (FDA) bar food companies from truthfully labeling their products as “low-FODMAP,” a description for foods that are made with easily digestible ingredients. Customer Michelle Przybocki and Gourmend Foods founder Ketan Vakil teamed up with the Institute for Justice (IJ) to challenge the regulation in 2023. 

“The government does not get to decide which facts consumers are allowed to learn,” said IJ Senior Attorney Justin Pearson. “Banning factual information isn’t just harmful, it’s unconstitutional. Thanks to the Ninth Circuit’s ruling, we can move forward with this important free speech challenge that could help tens of millions of Americans.” 

Many Americans struggle with digesting certain foods high in FODMAP, such as dairy, onion, and garlic. Yet federal food agencies refuse to let food entrepreneurs tell their customers that a product is low-FODMAP on labels. Michelle and Ketan’s lawsuit was dismissed by a federal district court, but the 9th U.S. Circuit Court of Appeals reversed the dismissal and ordered the district court to allow the case to move forward.  

The Ninth Circuit held that Michelle has standing against both the FDA and the USDA because businesses would voluntarily provide this important information to her on food labels but for the ban, and it similarly held that the risk of prosecution over factually true labels meant that Ketan and his business were also harmed by the ban and therefore have standing against the FDA. 

“I am just so truly grateful that we are beginning to receive the validation and recognition that people like myself and so many others so desperately need,” said Michelle, whose digestive issues were so bad she had a near-death experience and had to go on a very strict low-FODMAP diet. “Truthful, informative labels will help us to maintain our health and quality of life, while following a challenging, somewhat restrictive, but medically necessary dietary plan.”  

“For years the government’s position has been that we can’t tell people our products are low FODMAP, even when it’s true,” said Ketan. “What the court recognized today is that this isn’t an abstract fight over words—there are millions of people managing food sensitivities who need this information on the package, in the store, at the moment they’re deciding what’s gentle enough to eat. After three years, we finally get to make that case, for us, and for everyone still guessing in the grocery aisle.” 

Ketan began his business eight 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. 

“Ketan and Gourmend attempted to do everything the right way for their customers, but the government got in the way,” said IJ Attorney Betsy Sanz. “It should not be against the law to tell the truth.”