February 5, 2019

Head to the dairy case in your grocery store, and you’ll see a miracle of the modern age: milk, yogurt, and cheese that didn’t come from a cow, but are produced with almonds, soy, or even coconut instead. For the millions of Americans who are lactose intolerant, these plant-based products are a welcome relief and a tasty treat. But for Uncle Sam, it’s yet another opportunity to censor commercial speech.

The folks at the Institute for Justice (IJ) explain that the Food and Drug Administration (FDA) is considering issuing guidance that would prohibit non-dairy milk producers from labeling their product with the word “milk” (for example, “almond milk,” “soy milk,” or “coconut milk”). As IJ notes, the FDA is under pressure from the struggling dairy industry, which has seen a 25 percent decline in dairy milk consumption. Meanwhile, non-dairy milk sales increased 61 percent from 2012 to 2017. Possible industry favoritism aside, the FDA says the reason for the proposed regulation is consumer protection:

[T]he FDA has concerns that the labeling of some plant-based products, which can vary widely in their nutritional content, is leading consumers to believe that those products have the same key nutritional attributes as dairy products. And the agency wants to make sure that labeling plant-based products with names that include the names of dairy foods is not misleading to consumers.

Though putatively well-intentioned, the FDA would be violating the First Amendment right to freedom of speech, as IJ asserts in a comment that it filed with the agency:

IJ’s comment points out that, under current Supreme Court precedent applying the First Amendment, “The government is not allowed to ban businesses from making truthful statements on their beverage labels, and the determination of whether something is truthful is whether it comports with the common understanding, even when it directly conflicts with the government’s regulatory definition.”

Unfortunately, this isn’t the only example of government using its regulatory power to censor speech in the name of consumer protection, at the expense of businesses.

The Goldwater Institute recently filed a lawsuit against the state of Oregon challenging a law that prohibits vape shops from providing accurate information to their customers about legal products. For example, store owners are not allowed to sell, say, a strawberry-flavored vaping liquid with a drawing of a strawberry—or even the word “strawberry”—on the label because state regulators say such products are appealing to children. In that case, the rules are less about protecting kids and more about prohibiting business owners from describing their products to their customers.

“While proponents of Oregon’s regulations say they’re trying to protect children, these rules not only hurt consumers, but they hurt the free speech rights of hardworking small business owners trying to make a living,” said Goldwater Institute Senior Attorney Matt Miller, who is representing the plaintiff in the Oregon vaping case.

The same is true in the case of entrepreneurs who have brought plant-based food to market in order to satisfy consumer demand. In both cases, innovative entrepreneurs are being stymied by government regulation, and the public will suffer the consequences.

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