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The Affordable Care Act raises myriad constitutional problems. The Supreme Courthasheld that the commerce clause does not provide Congress with thepower 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 Obamacares 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 showthat menu labeling does not change what people order in any significant way. Whats more, Obamacares menu labeling requirement may actuallymake it harder for restaurants to offer healthier options. To comply, restaurants that want to offer healthier items must paythousands of dollars first to a lab to test the food, and then to a printing company to print new menus.

In thiscomment letter, PLF informed the Food and Drug Administration that the menu labeling requirement violates the First Amendment. The First Amendment not only appliesto 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 doesnt 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.

See original here:
Obamacare's First Amendment problem - PLF Liberty Blog - Pacific Legal Foundation (PLF) (press release) (blog)