The sale of gluten-free products has soared, as estimates put the amount of money American spend on gluten-free products between $4 billion and $7 billion every year.
Whether because they have been diagnosed with Celiac disease, a condition that causes severe pain for those who eat gluten, or because they perceive that they will be healthier or thinner by avoiding it, Americans now look for products that are marked “gluten free.”
Yet until last week, the claim that a product was gluten free was subject to great variations by food producers and marketers who, in the absence of regulation, had a great deal of latitude in their description of the product as gluten free.
Now, that has changed. The Food and Drug Administration just released regulations that require that a food cannot contain more than 20 parts per million of gluten in order to label itself “Gluten Free.” That regulation may provide guidance for food scientists and food manufacturers, but it still leaves some with questions like, 20 parts per million of what?
Or the more interesting question: How can the Food and Drug Administration tell a private company or anyone making or selling a food product what it can or can’t say on its label? Isn’t that a violation of the First Amendment?
In 1906, the Federal Government passed the Food and Drug Act, which made it illegal to put an adulterated food product that would be injurious to a consumer’s health or to use ingredients that were filthy, decomposed, or putrid. Blech.
From that law with relatively low standards, Congress has in the 100 years since its passage modified and expanded the powers of the Food and Drug Administration, which was the governmental body created to ensure compliance with the law. In 1990, Congress passed the Nutrition Labeling and Education Act, which requires food manufacturers to put nutritional labels on their products and also regulates the health claims products can use, like “high in protein” or “an excellent source of fiber.”
As you can imagine, not all food manufacturers took kindly to being told by the government what they had to say—or be prevented from saying—on the labels of their products.
How can the government get away with it? Most people are aware that the First Amendment prevents Congress from abridging the right to freedom of speech, many people do not realize that the freedom is based on what type of speech the government is abridging or regulating.
The Supreme Court has recognized a distinction between the protection given to speech of an ideological or political nature, and speech that is commercial. Commercial speech is a form of speech related to advertising or selling a product and it is not afforded the same level of protection against government regulation as other forms of speech. In other words, the government has more leeway to tell manufacturers what claims they can and cannot make when they are trying to sell their products.
That said, the government’s right to limit promotional speech is not unlimited. In a case entitled Va Pharmacy Bd. v. VA Consumer Council, 425 U.S. 748, 766 (1976), the Supreme Court found that “Advertising, however tasteless and excessive it sometimes may seem, is nonetheless dissemination of information as to who is producing and selling what product, for what reason, and at what price.”
The Court went on to conclude that “therefore, even if the First Amendment were thought to be primarily an instrument to enlighten public decision making in a democracy, we could not say that the free flow of information does not serve that goal.” As a result, the Court decided that the government has the burden of establishing sufficient justification for regulating speech.
So when, in 2011, the government tried to force cigarette manufacturers not only to carry a label advising consumers that smoking cigarettes have been linked to cancer and other health hazards, but went so far as to require them to carry very graphic photos of diseased people with suffering health conditions linked to cigarettes, along with a phone number for those who want to give up smoking, tobacco companies had enough and filed suit against the government.
They argued that requiring them to put a label on their product that basically begged their potential consumers not to buy their product was going too far and violated their right to free speech, even if the speech was commercial speech. In 2012, a Federal Court of Appeals agreed with the tobacco companies and blocked the requirement.
In 2013, no one is arguing that food manufacturers should have the right not tell you what ingredients are in the food you are ingesting—or the right to make false claims to get you to buy their products.
And the Food and Drug Administration’s regulation on the definition and labeling of gluten-free products has largely been met with approval by both consumers and the food industry, which has applauded the standardization in labeling practices. Now it’s up to the consumers, armed with the knowledge that a product does not contain gluten, to decide if the gluten-free lifestyle is for them.
Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.
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