In a formal statement to FDA, the association charged that the agency’s policy bans substantiated claims simply because they mention a “disease” term. According to NFPA, this cannot be justified under the commercial speech doctrine, which holds that truthful and non-misleading claims for conventional food products are fully protected.

Claiming the policy violates the First Amendment, NFPA said the government should “establish a policy that food companies making representations on food labels assemble the scientific evidence providing a reasonable basis for the specific claim that is made.”

The association said it would be easy for regulators to examine the credibility of the scientific evidence supporting the claim, suggesting that packagers be allowed, in some circumstances, to include label statements saying such things as “although all scientists do not agree with these findings, recent studies have shown that...” Regina Hildwine, NFPA’s Senior Director of Food Labeling and Standards, said “no benefit to public health can result from the arbitrary obstacles embedded in FDA rules.”

Hildwine also said FDA could do a better job in selecting the wording for required labels, and be open to suggestions from packagers if they offer wording that would be more effective in communicating the intended message to consumers.