Appeals Court Revives First Amendment Challenge to FDA and USDA Food Labeling Rules

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]

The case now returns to the district court to be argued on its substantive merits. The eventual outcome will determine whether the First Amendment permits the government to dictate which true facts consumers are allowed to learn in the grocery aisle.[2][5]