Category Archives: First Amendment

GMO Labeling and the First Amendment

As the endless debate about GMO labeling continues, the LA Times has a nice article on an issue I’ve highlighted before — that the First Amendment might preclude legislation or ballot initiatives that mandate the labeling of GMO ingredients.   The article notes that:

Courts have ruled that forcing companies to label GM products violates their 1st Amendment right of free speech.  In a 1996 case, a federal appeals court blocked a Vermont law that required dairy producers to label milk from cows that had been treated with a growth hormone made by genetically engineered bacteria.  The hormone helped cows produce more milk, but the milk itself was the same as milk from untreated cows, the FDA determined. Because the law required labels to contain information that wasn’t “material” to the product, it was unconstitutional, the 2nd Circuit Court of Appeals ruled in a 2-1 decision.


Labels can be required only if they alert consumers to a change that affects a food’s composition or nutrition, its physical properties (such as shelf life), or the qualities that influence the sensory experience of smelling, tasting and eating it, the FDA says.

Not surprisingly, the FDA’s position is shaped by Court rulings on the First Amendment.  In that regard, government-mandated disclosures (i.e., “compelled commercial speech”) does not generally offend the First Amendment when it  prevents (or “cures”) deception or confusion.   In addition, compelled disclosures may serve interests in promoting public health, which explains labeling requirements for nutritional data and common allergens.

A nice article on these First Amendment issues can be found here.  And the LA Times complete article is here.


FTC v. POM Wonderful: Decision Day Approaches

A decision is expected by April 17, 2012 — at the latest — in the closely watched matter of the FTC v. POM Wonderful, Doc. No. 9344.

The FTC’s administrative complaint charges “the makers of POM Wonderful 100% Pomegranate Juice and POMx supplements with making false and unsubstantiated claims that their products will prevent or treat heart disease, prostate cancer, and erectile dysfunction.”   The targeted advertisements include statements such as:

  • “SUPER HEALTH POWERS! … 100% PURE POMEGRANATE JUICE. … Backed by $25 million in medical research.  Proven to fight for cardiovascular, prostate and erectile health.”
  • Clinical studies prove that POM Juice and POMx prevent, reduce the risk of, and treat heart disease, including by decreasing arterial plaque, lowering blood pressure, and improving blood flow to the heart;

Unlike other companies, however, POM is determined to fight these allegations to the end.  Its primary argument is that the FTC has improperly changed its standard for how advertisers substantiate the truth of their claims.  Specifically, “(1) the FTC now requires advertisers to obtain prior FDA approval before making certain types of health related claims about food, beverages, and dietary supplements, … and the FTC is requiring prior FDA approval regardless of whether or not the claims are true or supported by competent, reliable scientific evidence; and (2) the FTC is also requiring two ‘well controlled’ clinical studies for non-disease claims, which also represents a dramatic change in the level of substantition required to establish the truth of these types of claims.”   According to POM, this new standard is improper because it did not go through the the formal rulemaking process and, more significantly, it “constitutes a ban on both deceptive and non-deceptive speech, the latter of which is protected by the First Amendment.”   

In effect, POM is arguing that for an undisputedly healthy product, the FTC is seeking to bar properly supported, qualified health claims that are protected under the First Amendment.  For its part, the FTC maintains that the advertisements were still “deceptive.”

This matter has been fully tried before an FTC Administrative Law Judge and all post-trial briefs have been filed.  A decision expected by April 17, 2012 at the latest.  Needless to say, it is likely that the FTC’s own court will find in favor of the FTC so expect this one to be appealed.