In a case involving health claims on dietary supplement labels, the U.S. Court of Appeals for the Second Circuit rejected a government assertion that prior restraint doctrine does not apply to commercial speech. The court also declined to issue a declaratory judgment in the absence of a specific health claim and evidentiary record.
In Nutritional Health v. Shalala, a nonprofit association of natural product interests charged that the Nutrition Labeling and Education Act and FDA regulations violated the strictures of Central Hudson and imposed an impermissible ban on truthful, non-misleading commercial speech. The group also claimed that the FDA's preauthorization requirement for health claims amounted to an unconstitutional prior restraint on speech.
At issue: whether prior restraint doctrine applies to commercial speech, and whether the plaintiffs could challenge the statute and regulations before they tried to have a specific health claim approved by the FDA.
The government went back to the dawn of the modern commercial speech era to find a potential justification for its prior restraint position. A footnote in the Supreme Court's 1976 Virginia Pharmacy Board decision noted that two presumed characteristics of commercial speech, its "greater objectivity and hardiness," might justify a lower level of protection and incidentally "may also make inapplicable the prohibition against prior restraints."
The Court mentioned this footnote four years later in Central Hudson — again as a footnote: "We have observed that commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply to it." Once more the Court failed to say whether prior restraint actually applied or not.
