One diet promoted by influencers and others over the last few years is a “low-FODMAP” diet, which entails “strict reduction of all slowly absorbed or indigestible short-chain carbohydrates (ie, FODMAPs) followed by reintroduction of specific FODMAPs according to tolerance.” The diet is controversial. FDA regulations prevent food producers from labeling products based on their FODMAP content, and USDA requires approval of such labels.
A consumer who seeks to follow a low-FODMAP diet, and a food company that wants to sell and market low-FODMAP foods and its owner, sued FDA and USDA after USDA rejected its request to include FODMAP content on its label. The district court dismissed the case for lack of standing and failure to exhaust administrative remedies. Yesterday, the Ninth Circuit reversed in part as to standing. Applying the Supreme Court’s decision in Murthy v. Missouri, the Court held that the consumer had a sufficiently concrete and specific connection to the “censored” speech to have suffered a concrete injury for Article III purposes. It further held that the food producer satisfied the requirements for pre-enforcement standing, though it affirmed the dismissal of their claims against USDA for failure to administratively exhaust.
