On both sides of the same coin, federal and state governments regulate food labels through restricting the use of certain statements or by requiring food companies to include certain disclosures. Some food companies have challenged governmental action regulating food labels by claiming the regulations violate the company’s First Amendment right of free speech. This blog post explains how courts have applied the First Amendment to food label regulations.

The First Amendment

The First Amendment to the United States Constitution limits the situations under which the federal government can restrict several specified rights. One of the most famous is the requirement that “Congress shall make no law … abridging the freedom of speech[.]” The purpose for which the speech is made will determine how limited the government is in what it can do.  For example, if someone challenges a governmental action that limits political, religious, or artistic speech, a court will evaluate the government action under strict scrutiny, the highest standard of review used to evaluate the constitutionality of a law. To survive strict scrutiny, the regulation or law must further a compelling governmental interest and be narrowly tailored to achieve that interest. On the other hand, courts apply intermediate scrutiny when reviewing government regulations of commercial speech. This means that a court will uphold a regulation or law if it serves an important governmental interest and the regulation is substantially related to achieving that interest. Thus, although commercial speech is protected, the government can regulate it more easily than it can regulate other forms of speech.

Commercial speech includes speech which promotes at least some type of commerce, such as advertisements, promises, and solicitations. Therefore, the words and pictures printed on a food label are generally considered commercial speech. The Supreme Court of the United States has created two tests for determining whether the government can regulate a company’s commercial speech. The first test comes from Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), and is applied when the government limits how a company can advertise or label it’s product. The second test comes from Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985), and is applied when the government compels or requires a company to include language (usually a warning) on its product.

The Central Hudson Test

Under the Central Hudson Test, a court will first determine whether the commercial speech in question concerns illegal activity or is misleading. If the commercial speech concerns illegal activity or is misleading, the government may constitutionally regulate it. If the speech does not concern illegal conduct and is not misleading, then the court will move onto the second “prong”, or “part”, of the test.

Under the second prong, the court will evaluate the reason the government wants to regulate the speech, and whether that reason is related to a substantial government interest or goal. An example of a substantial government interest or goal includes eliminating deceptive food labels. If the government’s reason for the regulation is not substantially related to a government interest, then the regulation is unconstitutional. If the regulation is substantially related to a government interest, then the court will move onto the third prong of the test.

Under the third prong, the court will consider whether the regulation will help the government achieve its interest or goal. In the previous example, to achieve its goal of eliminating deceptive food labels, the government may limit what products can be labeled as a certain food such as milk, mayonnaise, or peanut butter. If the regulation does not advance the stated interest, then the regulation is unconstitutional. However, if the regulation is helpful in achieving the government’s goal, then the court will move onto the fourth and final part of the test.

Under the last prong, the court will ask whether the regulation is more extensive, or burdensome, than necessary to achieve the interest. If the regulation puts too heavy a burden on the regulated companies, then the regulation is unconstitutional. However, if the regulation puts a proportional burden on the regulated companies, then the court will most likely uphold the regulation. The government does not have the seek the least restrictive means to achieve its goal, but the restriction must be reasonable.

In cases where food companies challenge state laws restricting how these companies could label their products, a few courts have recently applied the Central Hudson test. Particularly illustrative is Ocheesee Creamery LLC v. Putnman, 851 F.3d 1228 (11th Cir. 2017). In this case, Ocheesee creamery labeled one of its products as skim milk. Ocheesee made this product by skimming off the milk fat or cream and bottling the remainder. This skimming process depletes the remaining product of virtually all Vitamin A. However, under Florida law, dairies and creameries could only label a product as skim milk if they replaced the vitamin A lost during the skimming process. Ocheesee wanted to label its product as skim milk, but also did not want to fortify the product with Vitamin A. The Florida government gave Ocheesee two options: not sell the product at all or label the product as something other than skim milk.

Ocheesee sued the Florida government arguing that by restricting the use of the term “skim milk”, the government unconstitutionally violated Ocheesee’s freedom of commercial speech. The Florida government responded that it could constitutionally regulate Ocheesee’s commercial speech because under the first prong of the Central Hudson test, Ocheesee was conducting illegal activity when it labeled its unfortified product as skim milk in violation of Florida law. The Eleventh Circuit Court of Appeals disagreed with Florida, and stated that Ocheesee’s “conduct is not unlawful, only its speech is.”  The Court also determined that Ocheesee’s use of “skim milk” was not inherently misleading because even Webster’s Dictionary defined skim milk as “milk from which the cream has been taken”. The Court then moved onto the remaining prongs of the Central Hudson test, and ultimately found that there is a substantial government interest in combating deceptive food labels, but the steps Florida took were “clearly more extensive than necessary to achieve its goals.” Thus, the Court decided in favor of Ocheesee under the fourth prong of the Central Hudson test.

The Zauderer Test

Unlike the Central Hudson test, the Zauderer test is applied when a company challenges the constitutionality of a government action that requires the company to include information or disclosures on a label. Such required disclosures are usually seen at the state level. However, the Federal government will soon require compliance with its Bioengineered Food Disclosure Standard.

Under the Zauderer test, a law compelling a disclosure is constitutional if the compelled disclosure is (1) purely factual and not misleading, (2) reasonably related to a substantial government interest, and (3) neither unjustified nor unduly burdensome. The Zauderer test is notably similar to the Central Hudson test because it also applies intermediate scrutiny. The key difference between the tests is the situations in which they are applied. As stated earlier, Zauderer is applied when the government is requiring speech, and Central Hudson is applied when the government is restricting speech.

California’s Proposition 65 has spurred many Zauderer test challenges. Most recently, in California Chamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-EFB, — F.Supp.3d— (E.D. Cal. 2021), the California Chamber of Commerce brought a First Amendment challenge against the Proposition 65 requirement that certain foods and beverages carry a label stating the product contains acrylamide. In practice, Proposition 65 required foods and beverages containing acrylamide to carry the following warning: “consuming this produce can expose you to acrylamide, which is known to the State of California to cause cancer.” However, acrylamide is found naturally in many foods, and simply cooking food can cause acrylamide to form. The Eastern District of California found that the warning label “implies incorrectly that acrylamide is an additive or ingredient” and therefore fails the first prong of the Zauderer test. In other words, the label is not purely factual and is misleading. The court further found that California could have furthered its interest in warning against carcinogens like acrylamide with a less burdensome and more reasonable warning label. The state of California has since filed an appeal to the 11th Circuit Court of Appeals.

Conclusion

The First Amendment offers food companies some freedom to label their products as they wish and challenge compelled government disclosures. However, if the government can show that there exists a substantial government interest in prohibiting or requiring certain speech, and the government’s action is reasonable, then a court may find that the regulation is constitutional. Recently litigated cases will continue to help both food companies and government better understand how the First Amendment applies to food labels and advertisements.

 

For more National Agricultural Law Center resources on food labeling, click here.

For more National Agricultural Law Center resources on food safety, click here.

For more information about California’s Proposition 65, click here.

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