In Nutritional Health, however, the government stated flatly that prior restraint doctrine did not apply to commercial speech, but the Second Circuit rejected that contention as overbroad. The court cited its earlier ruling in New York Magazine:
"[W]e see no reason why the requirement of procedural safeguards [in prior restraint cases] should be relaxed whether speech is commercial or not...." A prior restraint should be judged according to Central Hudson Part 4 (not more extensive than necessary), the court added.
Having determined that "the prior restraint doctrine does play a role," the court went on to find that the FDA's 540-day review period for health claims on labels (in effect a 540-day prior restraint) was narrowly tailored enough to be constitutional.
Regarding the plaintiffs' challenge to the statute and regulations, the court ruled that the matter was not ripe for review. The plaintiffs did not cite any particular health claim that had been delayed or denied by the FDA, thereby making a Central Hudson analysis "extremely difficult for the court to conduct."
The court agreed with a Tenth Circuit decision in a similar case that, absent specific health claims, "this court cannot assess whether such claims are truthful and not misleading."
