July 12, 2017

Obamacare's First Amendment problem

By Wen Fa Attorney

The Affordable Care Act raises myriad constitutional problems. The Supreme Court has held that the commerce clause does not provide Congress with the power to enact the individual mandate. The Court also invalidated, under the spending clause, provisions that required states to expand medicaid coverage or lose all federal medicaid funds.

But what about Obamacare’s First Amendment problem? A little-known portion of the law requires restaurants and grocery stores to provide calorie counts on menu items. As I explain on Fa on First, years of research show that menu labeling does not change what people order in any significant way. What’s more, Obamacare’s menu labeling requirement may actually make it harder for restaurants to offer healthier options. To comply, restaurants that want to offer healthier items must pay thousands of dollars — first to a lab to test the food, and then to a printing company to print new menus.

In this comment letter, PLF informed the Food and Drug Administration that the menu labeling requirement violates the First Amendment. The First Amendment not only applies to laws that censor speech, but also to laws that compel speech. At a minimum, laws that force people to speak must directly advance a substantial governmental interest. The menu labeling requirement doesn’t do that. Rather, it forces restaurants and grocery stores to bear the costs of a law that, if anything, could decrease the number of healthy options they can provide to their consumers.

Good news may be on the way. The FDA has already decided to delay the implementation of the menu labeling rule. This administration may decide to scrap it altogether. If not, yet another constitutional challenge to Obamacare could be on its way.

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