Health Claims on Food Labels: Protecting Free Commercial Speech Versus Completing the Single Market

Abstract

The case of nutrition labeling contradicts the notion that regulation in the United States is shaped by a high tolerance for risk. In fact, the modern history of food health claims regulation in the United States reflects a cautious and highly restrictive approach. This approach only began to unravel in the opening years of the twenty-first century, and regulation has become progressively more permissive since. In addition, this chapter echoes the findings of chapter 2 that, in the European Union (EU), producer interests have intensified organization and influence within institutional channels that traditionally have given a receptive hearing to the claims of environmental, health, and consumer protection NGOs. But the chapter also shows that rulings of the European Court of Justice (ECJ) have had very different consequences for regulation of health claims on food labels than court decisions in the United States. This is so even though rulings on critical principles of free commercial speech, protecting competition, and the proportionality of regulatory remedies in the United States and the EU have coincided substantively.