Appeals Court Revives First Amendment Challenge to FDA and USDA Food Labeling Rules
The Ninth Circuit Court of Appeals has reinstated a lawsuit challenging federal bans on truthful 'low-FODMAP' food labels, setting up a major test of commercial speech rights. The ruling affirms that consumers may have a First Amendment right to receive accurate dietary information.
By Hailey Scott
In short
- The Ninth Circuit Court of Appeals revived a First Amendment lawsuit against the FDA and USDA over food labeling restrictions.
- The agencies banned a company from labeling its products as 'low-FODMAP,' classifying it as an unapproved nutrient content claim.
- The court ruled that consumers have standing as 'listeners' to challenge government bans on truthful commercial information.
Most consumers assume that when the federal government bans a claim on a food label, it does so because the claim is false or deceptive. The intuitive logic of consumer protection suggests that regulatory agencies exist primarily to shield the public from snake oil and fraudulent marketing.[4]
The structural reality of food regulation operates differently. The Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA) frequently prohibit food producers from printing entirely truthful, scientifically accurate statements on their packaging. They do so when those statements fail to fit into pre-approved, rigidly defined regulatory categories.[4][5]
This strict gatekeeping creates a direct constitutional friction point. The First Amendment protects commercial speech, meaning that when the government bans a truthful statement, it bears the burden of proving it has a substantial interest in doing so and that the restriction is narrowly tailored to achieve that interest.[4]
That exact constitutional clash is now moving toward a substantive legal showdown. In August 2026, the Ninth Circuit Court of Appeals partially revived a lawsuit challenging the FDA and USDA's refusal to allow a food company to label its products as "low-FODMAP."[1][2]
The litigation centers on Ketan Vakil, the founder of Gourmend Foods, and Michelle Przybocki, a consumer who suffers from severe digestive issues. Vakil's company manufactures foods specifically formulated to be low in FODMAPs—an acronym for fermentable oligosaccharides, disaccharides, monosaccharides, and polyols.[1]
These specific short-chain carbohydrates are notorious for triggering gastrointestinal inflammation and exacerbating conditions such as Irritable Bowel Syndrome (IBS). For millions of Americans managing these conditions, identifying low-FODMAP foods is a daily medical necessity rather than a casual dietary preference.[1]
Vakil sought to label his products as "low-FODMAP" and "easy to digest" to assist consumers like Przybocki in identifying safe options. The claims were factually accurate and supported by laboratory testing.[1]
However, when Gourmend Foods submitted a proposed label to the USDA's Food Safety and Inspection Service (FSIS) for approval, the agency denied the request. FSIS, after consulting with the FDA, ordered the company to remove all references to the terms "digestible," "gut loving," and "FODMAP."[2][3]
The regulatory agencies did not argue that the claims were false. Instead, they classified "low-FODMAP" as an impermissible "nutrient content claim." Under the Nutrition Labeling and Education Act of 1990, any claim characterizing the level of a nutrient—such as "low fat" or "high fiber"—must strictly adhere to definitions established by federal regulations.[2][3]
Because the FDA and USDA have not formally defined what constitutes a "low" level of FODMAPs in their regulatory framework, the agencies concluded that the claim is illegal to make on packaging, regardless of its underlying factual accuracy.[2]
Vakil and Przybocki, represented by the Institute for Justice, sued the agencies in 2023, arguing that the labeling ban violates their First Amendment rights. The district court initially dismissed the case entirely, ruling that the plaintiffs had failed to establish legal standing to sue.[1][2]
The Ninth Circuit's August 2026 reversal altered the trajectory of the challenge. The appellate panel made a crucial structural determination regarding the consumer's right to access information.[2]
The court found that Przybocki possessed standing as a "listener" under the First Amendment. Because food producers would reasonably include FODMAP information on their packaging if the regulations did not forbid it, the court ruled that the government's ban directly harmed her constitutional right to receive truthful commercial information.[1][2]
The panel simultaneously ruled that Vakil's company had standing to challenge the FDA's regulations due to the credible threat of enforcement against its products.[2]
The revival of this lawsuit tests the boundaries of the Central Hudson test, the Supreme Court framework used to evaluate restrictions on commercial speech. Under this precedent, the government cannot broadly ban truthful speech if a narrower approach—such as requiring a clarifying disclaimer—would adequately protect consumers.[4]
If the plaintiffs ultimately prevail on the merits, the decision could force a structural shift in how the FDA and USDA regulate food packaging. It would establish a precedent that agencies cannot rely on bureaucratic inertia or rigid categorization to censor truthful dietary information that consumers actively utilize.[1][5]
Key terms
- Commercial Speech
- Speech done on behalf of a company or individual for the purpose of making a profit, such as advertising or product labeling, which receives partial protection under the First Amendment.
- Nutrient Content Claim
- A statement on a food label that characterizes the level of a nutrient in the product, such as 'low fat' or 'high fiber,' which must adhere to strict federal definitions.
- Standing
- A legal principle requiring that a plaintiff must have suffered a direct, concrete injury in order to have the right to bring a lawsuit in federal court.
- Central Hudson Test
- A four-part legal framework established by the Supreme Court to determine whether a government restriction on commercial speech violates the First Amendment.
Frequently asked
What does FODMAP stand for?
FODMAP is an acronym for fermentable oligosaccharides, disaccharides, monosaccharides, and polyols. These are specific types of short-chain carbohydrates that are poorly absorbed in the small intestine and can trigger severe digestive distress in people with conditions like Irritable Bowel Syndrome.
Why did the FDA and USDA ban the 'low-FODMAP' label?
The agencies classified 'low-FODMAP' as a 'nutrient content claim.' Because federal regulations do not currently have a standardized, pre-approved definition for what constitutes a 'low' level of FODMAPs, the agencies ruled that the claim is illegal to use on packaging, regardless of whether it is factually true.
What did the Ninth Circuit Court of Appeals decide?
The Ninth Circuit did not rule on whether the labeling ban is unconstitutional. Instead, it reversed a lower court's dismissal of the case, ruling that the plaintiffs—both the food company and a consumer—have legal standing to sue the government and argue their First Amendment claims in court.
Viewpoints in depth
Food Producers and Free Speech Advocates
Argue that the First Amendment protects the right to share truthful, scientifically accurate information with consumers.
This camp contends that federal agencies overstep their constitutional authority when they ban factual statements simply because those statements do not fit neatly into existing regulatory frameworks. They argue that consumers are best served by transparency and that the government should only restrict commercial speech when it is demonstrably false or misleading. From this perspective, forcing companies to remain silent about verified health benefits harms both the businesses and the consumers who rely on that information.
Federal Regulatory Agencies
Argue that strict standardization of nutrient claims is necessary to prevent consumer confusion and maintain a uniform labeling system.
The FDA and USDA maintain that allowing companies to invent their own health and nutrient claims—even if technically true in isolation—would lead to a chaotic and deceptive marketplace. They argue that terms like 'low' or 'high' must be standardized across the entire food supply so that consumers can make apples-to-apples comparisons. From the regulatory perspective, requiring pre-approval for nutrient content claims is a necessary structural safeguard to protect the integrity of the national food labeling system.
Consumers with Dietary Restrictions
Argue that access to specific, accurate ingredient information is a medical necessity, not a regulatory technicality.
For individuals managing conditions like Irritable Bowel Syndrome or severe food intolerances, the inability to easily identify safe foods on grocery store shelves presents a significant daily burden. This camp views the government's refusal to allow truthful labels like 'low-FODMAP' as an active hindrance to their health. They argue that their First Amendment right as 'listeners' to receive accurate commercial information should override the government's desire for rigid regulatory uniformity.
- Free Speech Advocates
- Argue that the government cannot constitutionally ban truthful, non-misleading commercial speech.
- Regulatory Defenders
- Argue that strict standardization of nutrient claims is required to prevent a chaotic and confusing marketplace.
- Legal Analysts
- Focus on the structural implications of the 'listener' standing doctrine and the Central Hudson test.
Perspectives this story doesn't cover
- Large-scale food manufacturers
- Public health organizations
Sources
[1]Institute for JusticeFree Speech AdvocatesMajor Ruling in Favor of True Food Labels as Federal Appeals Court Revives First Amendment Lawsuit Against FDA and USDA
Read on Institute for Justice →
[2]National Law ReviewLegal AnalystsNinth Circuit Partially Revives 'Low-FODMAP' Labeling Suit
Read on National Law Review →
[3]Daily Intake BlogLegal AnalystsNinth Circuit Partially Revives 'Low-FODMAP' Labeling Suit
Read on Daily Intake Blog →
[4]Labels UnwrappedRegulatory DefendersFalse or Misleading Statements on Labels
Read on Labels Unwrapped →
[5]Factlen Editorial TeamLegal AnalystsSynthesis by Factlen editorial team
Read on Factlen Editorial Team →
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