Challenge Food Companies' “Right” To Make Health Claims

While food companies claim that First Amendment rights permit them to make unproven health claims on the front-of-packet labels of their products, Marion Nestle and David Ludwig disagree, arguing that freedom of corporate speech is not the same as that for politics or religion. They argue that stopping marketers from putting health claims on packaging will eliminate the use of any unproven or misleading claims and lead consumers to read the full list of ingredients. But in an article in Public Health Nutrition, a British publication, Timothy Lytton argues that a total ban on front-of-packet health or nutrition claims would be a violation of the First Amendment, and that free commercial speech has been regularly upheld in lower court decisions. In a response to Lytton in the same journal, Nestle and Ludwig argue that a legal defense of this type on the grounds of the First Amendment was stopped in 2003, and that such a defense in the context of junk food marketing is contrary to the spirit of the First Amendment. Instead, they say the time has come for corporations to be challenged on the way they mislead consumers through front-of-packet labeling.