The alarming rise in diabetes and obesity rates in the United States has placed significant strain on health care systems and poses a serious public health threat. Americans’ overconsumption of ultra-processed foods high in sugar, salt and unhealthy fats is a concerning contributor. Globally, poor nutrition from such dietary habits plays a major role in the global burden of chronic diseases. In response, many countries have implemented policies to reshape their food environments. A prominent strategy is front-of-package (FOP) labeling systems, designed to help consumers make more informed choices, encourage healthier lifestyles, and push food manufacturers to align with public health guidelines by reducing ingredients such as sugar and salt.
Despite international momentum and calls from public health experts, the United States remains behind. Since 2009, the U.S. government has discussed the potential adoption of a uniform FOP label, with Congress directing the Centers for Disease Control and Prevention and Institute of Medicine (IOM) to produce recommendations on the topic. No standardized system exists but the U.S. Food and Drug Administration (FDA) is expected to propose new rulemaking on front-of-package labeling in 2024.
The Case for Front-of-Package Labeling from a Global Perspective
Front-of-package labeling puts a nutrition label on the visible front of the package. Simple, often graphic information on the nutrient content or nutritional quality of products complements the detailed nutrient declarations provided on the back. The World Health Organization (WHO) has recommended FOP labeling as a cost-effective intervention to improve population-level dietary habits. Evidence supports FOP labels as enhancing consumer understanding of nutritional quality, influencing purchasing decisions, and discouraging the consumption of unhealthy foods and beverages.
In 2016, Chile was the first country to implement mandatory FOP warning labels. Packaged foods and drinks that exceed specific thresholds for sugar, saturated or trans fats, sodium, or calories are required to carry a black-and-white stop sign warning label on the front of the package. This measure led to a significant reduction in sugar-sweetened beverage purchases and reformulation of products to meet healthier standards. Several Latin American nations, including Brazil and Mexico, adopted similar stop sign-style warning labels. In Israel, mandatory FOP labels also prompted significant reformulation efforts as manufacturers aimed to avoid red warning labels. Meanwhile, in Europe, FOP labeling is voluntary, with many countries opting for the color-coded Nutri-Score system.
In 2022, the Biden administration hosted the first White House Conference on Hunger, Nutrition, and Health in over 50 years. One of the key outcomes of this conference was the development of a National Strategy on Hunger, Nutrition, and Health, which included a commitment to exploring a standardized FOP labeling system. Under “Pillar 3—Empower All Consumers to Make and Have Access to Healthy Choices” the strategy highlights that the FDA will conduct research and propose a standardized FOP system for food packages, marking a potential shift toward greater regulatory oversight in food labeling.
Front-of-Package Labeling and the First Amendment
In the U.S., food labeling is regulated under the Nutrition Labeling and Education Act which mandates the inclusion of standardized Nutrition Facts panels, ingredient lists, and allergen information. Currently, factual information resides on the back or sides of food packages.
While the discussion around FOP labeling in the U.S. has gained attention, it raises complex legal questions, particularly concerning the First Amendment’s protection of commercial speech. Commercial speech, which includes advertising and product labelling, enjoys constitutional protection but is not absolute.
The food industry has previously challenged various labeling requirements under the First Amendment. For instance, in 2015, San Francisco passed a law requiring outdoor advertisements for sugar-sweetened beverages to include a health warning covering 20% of the ad space. Industry groups sued, claiming the requirement violated their First Amendment “right to freedom of speech.” The Ninth Circuit decided that the law was an “unjustified or unduly burdensome disclosure requirement” that might “chill” the associations’ protected commercial speech, violating the third part of the Zauderer test.
On the other hand, in 2016, the FDA proposed a new rule requiring food manufacturers to disclose added sugar content on packaging. Not surprisingly, the Sugar Association opposed the regulation, arguing that the mandate violated their First Amendment rights by compelling commercial speech. However, the FDA successfully defended the rule using the Zauderer test, demonstrating that the disclosure was necessary to prevent misleading advertising and promote informed consumer choices.
The Zauderer test, established by the U.S. Supreme Court, determines whether government-mandated disclosures in commercial speech — such as labeling requirements — are consistent with the First Amendment. Under Zauderer, disclosures are allowed if they provide accurate, factual information, are not unjustified or unduly burdensome, and reasonably relate to a government interest in preventing deception of consumers.
Additionally, legal scrutiny of FOP labeling could also involve the Central Hudson four-part test, which determines when commercial speech can be regulated. The test considers whether: (1) the speech concerns lawful activity and is not misleading, (2) the government has a substantial interest, (3) the regulation directly advances that interest, and (4) the regulation is not more extensive than necessary to serve that interest.
The examples above highlight that any future, mandatory FOP labeling system in the U.S. would certainly face opposition from the food industry on First Amendment grounds. However, U.S. Supreme Court precedents, such as Zauderer and Central Hudson, provide a potential legal foundation for the adoption of FOP labeling.
First, FOP labeling could be defended under Zauderer, especially if it is framed as essential for preventing consumer deception and promoting public health — a substantial government interest. The growing economic and public health burdens posed by noncommunicable diseases further strengthen the case that such regulations are neither unjustified nor overly burdensome. Similarly, under the Central Hudson framework, one could argue that FOP labeling “directly advances” the government’s interest in safeguarding public health. The FDA states that it is responsible for advancing the public health by helping the public access the accurate, science-based information about food that is needed to maintain and improve health.
Conclusion
FOP labeling is a widely adopted public health tool aimed at mitigating the adverse effects of unhealthy diets. Studies demonstrate its positive impact on consumer behavior, encouraging the purchase of healthier foods and discouraging unhealthy options.
Countries that have implemented mandatory FOP systems have faced litigation from industry. In Chile, for example, industry efforts to challenge mandatory warning labels on the grounds of property rights and freedom of commercial expression were overruled, with the Court prioritizing public health. Similarly, Mexico’s Supreme Court upheld the constitutionality of FOP labeling in a case brought by Kellogg’s, emphasizing the protection of public health, and the consumer’s right to accurate and accessible information, while affirming that corporate rights to freedom of trade and free competition were not unduly restricted.
While the U.S. legal landscape presents distinct challenges — particularly concerning the First Amendment and its protection of commercial free speech — there is potential for change when viewed through a comparative legal lens. Should the FDA decide to implement a mandatory FOP labeling system, undeniably, there will be litigation. However, this should not deter efforts to address the critical public health issue of unhealthy diets and their associated health impacts. It’s about time for the U.S. to align with global standards by adopting FOP labeling as an essential measure to advance accessible information for consumers, reduce the consumption of unhealthy packaged foods, improve dietary habits, and combat the rising rates of obesity and noncommunicable diseases.
Alice Bryk Silveira is a visiting scholar at the Harvard Law School Food Law and Policy Clinic. Alice’s research interests include international human rights, public health law, and food law. She is a licensed lawyer from Brazil, holding a Law Degree from Pontifícia Universidade Católica do Rio Grande do Sul and an LLM in International Human Rights Law from Tel Aviv University.
