Censorship and Sensibility: Does the First Amendment Allow the FDA to Change the Meanings of Words?

The question of whether the Constitution allows the government to change the meanings of words is receiving renewed interest in the aftermath of the FDA’s announcement that it intends to examine whether it should begin enforcing milk “standard of identity” regulations. These restrict the use of the word “milk” to cow’s milk and thus ban almond milk and coconut milk from being labeled as almond milk and coconut milk. Even so, the government’s attempts to change our language stretch back a century. This article begins by discussing the relevant regulations before turning to the varying levels of First Amendment protection granted to commercial speech in general, and food labels in particular, throughout U.S. history. It concludes with an analysis of the likely results should the FDA follow through with these plans and face a First Amendment challenge in court, and the article finds that the proposed change in enforcement would likely violate the First Amendment.

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