What are the First Amendment obstacles to mandatory front-of-pack labeling?

Suppose the government wanted to require front-of-pack nutrition labels for packaged food and beverages, making it easier for consumers to see at a glance some key nutritional qualities.

In the United States, could the manufacturers claim that such a rule violates their First Amendment rights?

In the journal Food Policy this past summer, Jennifer Pomeranz, Dariush Mozaffarian, Renata Micha, and I study the precedents. Much depends on whether a particular labeling policy could satisfy a legal principle called the Zauderer test. This test stipulates, for example, that the mandatory labeling information must be factual and uncontroversial. 

Looking at the wide array of front-of-pack labeling schemes around the world, we find that some varieties are more likely than others to pass this test. Certain proposals for simple mandatory symbols indicating "healthy" or "unhealthy" broadly, without communicating much nutrition information, could be ruled unconstitutional.

The article is titled, "Mandating front-of-package food labels in the U.S. – What are the First Amendment obstacles?"

Pomeranz et al. (2019). Table 1 (small excerpt).

WCRF policy strategies to reduce non-communicable disease around the world

The World Cancer Research Fund (WCRF) this month published a new 2-page document (.pdf) summarizing the organization's recommendations on using food policy to address the problem of high rates of non-communicable diseases (NCDs).

The recommendations encourage clear nutrition labeling, healthy school meals programs, well-targeted taxes and healthy food subsidies, and restrictions on advertising for breastmilk substitutes and for unhealthy foods (especially to children).

The WCRF is an international not-for-profit umbrella organization for a network of cancer prevention organizations. WCRF literature reviews on dietary patterns and cancer risk are used by the U.S. federal government as one of several evidence sources for the Dietary Guidelines for Americans.

The WCRF policy recommendations are bolder and more activist than some policy-makers would be ready to consider in the United States, but the WCRF approach nonetheless offers a lot of insight.  For example, a background document on law and obesity prevention (.pdf) carefully considers both advantages and disadvantages of legal approaches to addressing public health nutrition challenges.  It acknowledges not just the political power of food and beverage manufacturers to thwart such policies but also the constitutional protections for commercial speech and the serious concerns consumers may have about policy interventions that limit their autonomy.

For perspective on U.S. food policy debates, it is illuminating to hear an international perspective that is (not surprisingly) comparatively interventionist, but which at the same time fully recognizes the challenges and tradeoffs involved in such policy proposals.

 

Harvard Food Law and Policy Clinic

For a couple years, I have been following the work of Emily Broad Leib and the Harvard Food Law and Policy Clinic.  The clinic has projects related to food access in the Mississippi Delta, school meals programs here in Massachusetts, state laws governing farmers markets, urban food initiatives, and more.  Several Friedman School students have been involved at one time or another.  The clinic keeps a blog describing activities, internships, and events.

For example, one upcoming event will be held jointly with the Friedman School and the Food Sol initiative at Babson College.

WHAT: Community Table

HOSTS: Members of the Harvard Food Law and Policy Clinic, Tufts Friedman School of Nutrition Science and Policy, and Food Sol at Babson College

WHEN: Friday, March 29th 2013 from 12:00 – 2:00 pm

WHERE: Whole Foods Market, River Street Store, Community Room *Free and open to the public

Community Table is a hub and resource for students pursuing a personal or professional food focus. Conversation will center on what students of food policy, law, nutrition science, technology, business and entrepreneurship are up to in the field and directly support what each is working on (e.g. class, project, internship, job) with ideas, feedback and connections. Community Table is designed to be a relaxed, open brainstorming forum. Format is drop-in, so attendees should feel free to come and go as their calendars permit.