“FOP” Food Labeling: The Energy Star® Model Raises First Amendment Concerns

A recent Institute of Medicine report encourages the Food and Drug Administration to adopt a ​“single, standard FOP [front-of-package] system” for food labeling and singles out the Energy Star labeling program as a ​“successful government labeling system” meeting the criteria deemed important for an FOP system.   The analogy to the Energy Star program fails to consider significant differences in the product marketing environment in which appliances and food products are marketed to consumers.  Additionally, any FOP labeling system modeled after the Energy Star program would pose serious First Amendment concerns under well established principles of commercial speech.  Key points in this paper include:

• Established First Amendment principles require the government to justify commercial speech restrictions under Central Hudson, regardless of whether the government restrictions can be said to restrict speech under a voluntary scheme.
• Disclosure requirements intended to elicit certain responses or symbolize a particular message are inherently suspect under the First Amendment and subject to more rigorous scrutiny than disclosure requirements that seek to provide objective information.
• Any front-of-package labeling program must grant food marketers sufficient freedom to convey truthful information and avoid placing unnecessary restrictions on how that information is conveyed in order to be consistent with the First Amendment.