Food Label Regulation vs. Free Speech: Prof. Lytton Weighs in on Conflict

12/21/2010 | Facebook | Twitter | Email

Date: 12/21/2010

Albany Law School Professor Timothy Lytton argues that an outright ban on front-of-package nutrition and health claims by food manufacturers would violate the First Amendment in a recent article published in the international Public Health Nutrition journal.

"Reducing the proliferation of unfounded health claims on food packaging is an important step in improving public health in the United States," said Professor Lytton. "However, it is important to make sure that the efforts to protect consumers are consistent with the First Amendment rights to free speech of the food industry."

Professor Lytton contends in the piece that while government agencies and nutrition policy experts are right to raise concerns about consumer protection from scientifically unsound and misleading food-packaging claims, an outright ban on such claims would violate First Amendment constraints on the U.S. government's regulation of commercial speech.

The U.S. Food and Drug Administration (FDA) has recently been sending warning letters to food manufacturers in an effort to crack down on misleading nutrition and health claims on the front of food packages. The FDA has also indicated that it will develop stricter regulatory standards for the food industry. Some nutrition policy reform advocates are going even further, arguing for the ban on any such claims on food labels.

Marion Nestle, a professor in the Department of Nutrition, Food Studies and Public Health at New York University and one of the leading voices in nutrition policy reform, responded to Professor Lytton's piece in a recent blog posting, as well as with a letter to Public Health Nutrition that she authored with David Ludwig, the director of the obesity program at Children's Hospital Boston.

In the letter, they wrote, "We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton's arguments make the need for such reconsideration perfectly evident."

Professor Lytton is the Albert and Angela Farone Distinguished Professor of Law at Albany Law School in New York state. His most recent book is Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008). He is also the editor of Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts (Michigan University Press 2005) and co-author of Jurisprudence, Cases and Materials: An Introduction to the Philosophy of Law (Lexis 2006).