Institute for Food Laws and Regulations

This Article assesses whether the FDA has the authority to combat the obesity crisis through required statements on food labels. Part I introduces food labels, and discusses the tension between the First Amendment and commercial speech. Part II analyzes the applicable standards of review-strict scrutiny, intermediate scrutiny, and rational basis-that could afford the FDA the authority to compel commercial speech. Part III introduces three proposed statements for food labels to assist the FDA in addressing the obesity crisis. Conscious of the First Amendment issue, this Article assesses which of these textual statements are acceptable forms of compelled commercial speech under the intermediate scrutiny standard. Lastly, this Article advocates that the FDA should require the textual statement "Warning: this product is high in sugar increasing your risks of becoming obese" to combat the obesity crisis because this textual statement presents new, meaningful information to consumers enabling consumers to make healthful decisions about their food, and because this label statement encourages recipe modification from the manufacturers.

Published in Food and Drug Law Journal, Vol. 68, Issue 3 (2013), pp. 309-332.