FODMAP food labeling is getting its day in court, following a decision by the 9th US Circuit Court of Appeals Monday that allows a First Amendment case against the federal government to move forward, after a district court dismissed the case in 2024.
FODMAP, an acronym for Fermentable Oligosaccharides, Disaccharides, Monosaccharides and Polyols, represents carbohydrates found in some foods, such as dairy, onion and garlic, that can be difficult to digest.
In 2023, Michelle Przybocki and Ketan Vakil filed a lawsuit challenging the USDA, FDA and Food Safety and Inspection Service’s ban on package labels declaring the low-FODMAP. Przybocki suffers from severe digestive issues that require a low-FODMAP diet, and Vakil owns Gourmend Foods, which specializes in gut–friendly food products low in FODMAPs.
Monday’s appeals court ruling means the freedom-of-speech case can advance.
“The government does not get to decide which facts consumers are allowed to learn,” said Justin Pearson, senior attorney with the Institute for Justice, which is representing Przybocki and Vakil. “Banning factual information isn’t just harmful, it’s unconstitutional. Thanks to the 9th Circuit’s ruling, we can move forward with this important free speech challenge that could help tens of millions of Americans.”
Gourmend’s beef broth label block
Vakil launched Gourmend in 2018, after he began following a low-FODMAP diet on the advice of his doctor.
He sells four spice blends and a chicken broth that declare themselves low–FODMAP. He had the five products certified through Australian-based Monash University’s FODMAP certification program, according to court documents.
Gourmend also developed a beef broth product, declared it as a low–FODMAP product and submitted its label to the USDA and FSIS for approval in July 2022.
Although FSIS had not objected to the labels on Gourmend’s five other low-FODMAP products, the agency instructed Gourmend to remove references to the words “digestible, gut loving and FODMAP” or the label would be rejected.
The food company reapplied with the requested changes and was approved.
Case dismissed
Vakil and Przybocki sued, but the case was dismissed in 2024 on two grounds.
The court held that Vakil failed to plead an injury arising from the FDA, “because they were selling FODMAP-labeled products and had not received ‘any warning letters or threats from FDA.’”
The court also held that Przybocki had not suffered injury from the label dispute because she “had not alleged that Gourmend sells food in any store Przybocki frequents, because Gourmend’s products except its beef broth still carry the ‘low-FODMAP’ labels, and because Przybocki can find information about Gourmend’s beef broth on its website.”
A plausible argument
The appeals court decision allowing the case to advance acknowledges that the government’s rejection of the label injures Vakil and Przybocki because the matter at hand involves more than just the beef broth label.
“According to the complaint, Gourmend would like to expand and sell new products with low-FODMAP labels but development is delayed or prevented because of the regulations,” the court held. “Thus, whether or not Gourmend is already speaking to Przybocki about the beef broth via its website, Przybocki is injured by the regulations because they are causing Gourmend to refrain from developing and speaking about new products.”
The court also noted that Przybocki makes a plausible accusation that “there are other food companies that would like to label their products with FODMAP levels but refrain from doing so due to the challenged regulations.”
The court also found that Vakil and Przybocki plausibly argue that consumers want information about FODMAP levels.
“Given the prevalence of FODMAP-related digestive disorders today, one can plausibly infer that consumers, perhaps numbering in the tens of millions, want food labels to contain information about FODMAP levels,” the court said.
Supreme Court bound?
Following the 9th Circuit Court ruling, FDA and USDA have 90 days to ask the US Supreme Court to hear the case, Pearson said in an email. If they don’t, the case will go back to the district court, which will consider the merits of the First Amendment argument.
“If the district court agrees with us, then it is at that time when a court order will hopefully be entered to finally allow this factual, truthful, helpful information to be included on labels by food sellers who voluntarily want to do so,” Pearson said.
Pearson noted that it is mainstream medical advice by doctors to suggest low-FODMAP foods. “The problem is that when they try to follow their doctors’ advice, they have difficulty doing so because the government has banned companies from providing this indisputably truthful, factual, helpful information on food labels,” he said.
