U.S. Food Labelling Regulations vs. Freedom of Speech - Creation of "Qualified Health Claims"
![handle is hein.journals/effl2017 and id is 157 raw text is:
142 | U.S. Food Labelling Regulations vs. Freedom of Speech
U.S. Food Labelling Regulations vs. Freedom
of Speech - Creation of Qualified Health
Claims
Monika Jankowska*
Until 2000, the US. federal regulations required that a health claim had to meet the signif-
icant scientific agreement (SSA) standard to be authorized by the FDA for use in food la-
belling. However, the commercial speech doctrine, derived from a general principle of free-
dom of expression, provided grounds for challenging these regulations, which led to creation
of a new type of health claims used in food labelling - qualified health claims. This article
begins with a presentation of the commercial speech doctrine. Further, it summarizes the
U.S. regulations concerning the use of health claims in food labelling. Then, it describes how
the application of the commercial speech doctrine changed the health-claims authorization
system in the U.S.A. and shows some results of this process.
1. Introduction
While advertising food products as offering any kind
of health benefits has become standard practice in
food marketing industry, the governments around
the world have faced a difficult task of regulating the
use of such claims to prevent consumer deception.
Considering the clashing interests of many groups,
from food producers to public health organizations,
it is hardly surprising that the rules on food labelling
and advertising often provoke controversies. In the
U.S., the regulations concerning the use of heath
claims in food labelling have been challenged under
the commercial speech doctrine derived from a gen-
eral principle of freedom of expression. This article
briefly describes development of this doctrine and
its impact on food labelling regulations.
11. Development of the Commercial
Speech Doctrine
The U.S. Supreme Court first evoked the term com-
mercial speech in Valentine case' in 1942, indicat-
ing, however, that this category of speech was out-
side the scope of First Amendment protection. The
Supreme Court changed its stance in 1976, when it
decided a case in which consumers of prescription
drugs challenged the validity of a Virginia statute un-
der which advertising prices of prescription drugs
constitutes unprofessional conduct for a licensed
pharmacist.2 The Supreme Court decided that com-
mercial speech was to some extent protected by the
First Amendment, and hence the statutory bans on
advertising prescription drug prices were unlawful.
The Court examined whether the fact that some
speech does no more than propose a commercial
transaction, precludes it from constitutional protec-
tion.3 The Court noted:
[A]dvertising, however tasteless and excessive it
sometimes may seem, is nonetheless dissemina-
tion of information as to who is producing and
selling what product, for what reason, and at what
price. So long as we preserve a predominantly free
enterprise economy, the allocation of our re-
sources in large measure will be made through nu-
merous private economic decisions. It is a matter
of public interest that those decisions, in the ag-
gregate, be intelligent and well informed. [...]
Therefore, even if the First Amendment were
thought to be primarily an instrument to enlight-
en public decisionmaking in a democracy, we
Monika Jankowska holds Master of Laws degree from the Univer-
sity of Warsaw, currently she is a Trainee Legal Advisor at the
Regional Bar of Legal Advisors in Warsaw.
1 Valentine v. Chrestensen, 316 U.S. 52, 54 (1942).
2 Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346
(1976).
3 Ibid., at pp. 1825-26.
EFFL 2|2017](ViewImageLocal?handle=hein.journals/effl2017&div=26&collection=&method=preview&ext=.png&size=3)
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U.S. Food Labelling Regulations vs. Freedom of Speech - Creation of "Qualified Health Claims"
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