“FOP” Food Labeling: The Energy Star Model Raises First Amendment Concerns
A front-of-package labeling system modeled after the Energy Star® program would pose substantial First Amendment issues. 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. Additionally, the front-of-package labeling program must avoid compelling speech which is not necessary to consumer use or safety. The front-of-package labeling system has the potential to stigmatize wholesome and nutrient rich products that can be part of a healthy diet, based on a “signal” that highlights solely calories and nutrients that consumers would be encouraged to avoid – added sugars, saturated and trans fats, and sodium.