'Natural' Food Labeling: False Advertising and the First Amendment

Abstract

Currently, the Food and Drug Administration has not stated a regulated definition for the term “natural” thus resulting in intentional misuse of the term by companies. It is the author’s position that the most equitable outcome for regulation and limitation of the term “natural” would be achieved by applying the four-prong test set forth in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York. This ensures advancement in the marketplace for healthy foods to help increase in the health of United States citizens. Further, more accurate conclusions are reached through regulation that considers the unique circumstances of each company’s usage of the term as proposed by the test. The Central Hudson test proposes that the government has a substantial interest in limiting commercial speech: if it is not misleading, if the government has a substantial interest in regulation, if it is possible for the regulation to advance from the government’s interest, and if resulting regulation will not be more extensive than necessary to serve the purpose. In the current context, this would allow the government to insist that the usage of the term “natural” be limited to products deserving of the title by requiring companies to disclose information about the meaning of the term on their packaging or by prompting the Food and Drug Administration to reevaluate and redefine the term to reduce deceiving or misleading claims. Among other cases, an application of the Ninth Circuit’s holding in Association of National Advertisers, Inc. v. Lungren, the Sixth Circuit’s holding in International Dairy Foods Association v. Boggs, and the Northern District of California’s holding in Kane v. Chobani, Inc. illustrates the effectiveness of this test. These cases each involve the usage of the term “natural” or similar marketing buzzwords to advertise products. Considering that the context of companies’ misusage of the term “natural” falls within the zone of interests protected by the Central Hudson test, the government is granted the ability to suspend companies’ First Amendment rights to further its interest in advancing the marketplace of healthy foods and increasing the health of United States citizens. Thus, this case law leads to a strong presumption that it would be beneficial for Congress to codify the Central Hudson test which would essentially require the Food and Drug Administration to redefine and regulate usage of the term “natural” mandating that companies present their products in such a way that is beneficial and not misleading to consumers.