“Regulatory power must follow the Constitution. The FDA cannot simply choose to compel speech it prefers, sidestep Congress, and impose sweeping labeling mandates without clear statutory authority.”
—Zac Morgan, WLF Senior Litigation Counsel

Click here to read WLF’s comment.

(WASHINGTON D.C.) —Yesterday Washington Legal Foundation (WLF) submitted a public comment opposing the U.S. Food and Drug Administration’s (FDA) Proposed Rule mandating interpretive Front-of-Package (FOP) nutrition labeling. The Proposal Rule would require all food manufacturers to apply government-defined “high,” “medium,” or “low” warnings for added sugars, sodium, and saturated fats on the front of packaged foods.

WLF’s comment argues that the Proposed Rule is constitutionally flawed, legally baseless, and procedurally unsound. The Foundation contends that the rule violates the First Amendment by compelling speech: mandating companies to deliver interpretive judgement-laden messages rather than purely factual and uncontroversial quantitative disclosures. These government-imposed labels are explicitly designed to influence consumer behavior and promote the government’s viewpoint, not to neutrally inform.

WLF also highlights that the FDA lacks statutory authority to impose this mandate. The agency’s proposal contravenes Congress’s clear intent by going beyond the Nutrition Facts panel established under existing law. Relevant provisions of the Federal Food, Drug and Cosmetic Act do not empower the FDA to require interpretive FOP labeling, improperly usurping Congress’s role in setting national food-labeling policy.

Further, the Proposed Rule likely violated the Administrative Procedure Act (APA) as arbitrary and capricious. The FDA failed to adequately consider reasonable and less burdensome alternatives, including voluntary FOP labeling initiatives and comprehensive public health education campaigns. The FDA’s insufficient evaluation renders the Proposed Rule procedurally and substantively defective under the APA.

WLF urges the FDA to withdraw the Proposed Rule.