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Addressing Consumer Confusion Surrounding “Natural” Food Claims

Published online by Cambridge University Press:  06 January 2021

Efthimios Parasidis*
Moritz College of Law and the College of Public Health, The Ohio State University
Neal Hooker
John Glenn College of Public Affairs, The Ohio State University
Christopher T. Simons
Department of Food Science & Technology, The Ohio State University
Please address correspondence to


Use of “natural” and “all natural” claims on food and beverage products has increased exponentially over the last decade. Studies have consistently found that the claims influence consumer behavior—consumers seek out and are willing to pay a premium for products that make Natural claims. Not surprisingly, the Natural market has grown significantly, surpassing $40 billion in annual revenues. Despite strong consumer demand for Natural products, a majority of consumers have mistaken beliefs about the meaning of Natural claims.

Copyright © American Society of Law, Medicine and Ethics and Boston University 2015

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1 For the sake of convenience, we refer to “natural,” “all natural,” and “all natural ingredients/flavors” claims simply as “Natural” claims. See, e.g., Nielsen, Peter E., Natural—synthetic—artificial!, 1 Artificial DNA: PNA & XNA 58, 58-59 (2010)CrossRefGoogle Scholar.

2 See, e.g., National Survey: Green Is Officially Mainstream—But Consumers Are Confused, Skeptical About Products, Bus. Wire (June 30, 2009, 10:31 AM),–-Consumers#.VPtc_CnxSlI; NMI Trend for 2011: It's a Complicated Life, NMI (May 1, 2011),

3 Roberto A. Ferdman, The word “natural” helps sell $40 Billion worth of food in the U.S. each year - and the label means nothing, Wash. Post (June 24, 2014),

4 Deborah Pike Olsen, Say no to 'natural' on food labels, (June 16, 2014, 6:00 AM),; Elizabeth Weise, 66% of consumers wrongly think “natural” means something, USA Today (June 17, 2014, 8:20 PM),

5 See Nestle, Marion & Ludwig, David S., Front-of-Package Food Labels: Public Health or Propaganda?, 303 JAMA 771, 771-72 (2010)CrossRefGoogle ScholarPubMed; Elaine Watson, Poll results: We need a clearer definition of natural … and the FDA should come up with it, (Nov. 7, 2011),

6 See, e.g., What is the meaning of 'natural' on the label of food?, U.S. Food & Drug Admin., (last updated Jan. 26, 2015).

7 Pomeranz, Jennifer L., Litigation to Address Misleading Food Label Claims and the Role of the State Attorneys General, 26 Regent U. L. Rev. 421, 423 (2014)Google Scholar.

8 See Mike Esterl, The Natural Evolution of Food Labels, Wall St. J., Nov. 6, 2013, at B1; Stephanie Strom, Kellog Agrees to Alter Labeling on Kashi Line, N.Y. Times (May 8, 2014),

9 Esterl, supra note 8, at B1.

10 Farris, April L., The “Natural” Aversion: The FDA's Reluctance to Define a Leading Food-Industry Marketing Claim, and the Pressing Need for a Workable Rule, 65 Food & Drug L.J. 403, 406-07 (2010)Google ScholarPubMed; Letter from Andrew C. Briscoe III, President & CEO, Sugar Ass'n, to the U.S. Food & Drug Admin. (Feb. 28, 2006) (on file with the Ctr. for Science in the Pub. Interest), available at (asking the Commissioner of the FDA to adopt rules and regulations regarding the definition of the term “natural”); Letter from Robert G. Reinhard, Dir., Sara Lee Corp., to the U.S. Food & Drug Admin. (Apr. 9, 2007) (on file with the U.S. Food & Drug Admin.), available at (same).

11 Farris, supra note 10, at 406-07; Lorraine Heller, 'Natural' will remain undefined, says FDA, Food (Jan. 4, 2008),

12 Letter from Leslie Kux, Assistant Comm'r for Policy, U.S. Food & Drug Admin., to Judges Yvonne Gonzalez Rogers, Jeffrey S. White, & Kevin McNulty (Jan. 6, 2014) [hereinafter Letter from Leslie Kux] (on file with Hyman, Phelps & McNamara, PC), available at

13 Negowetti, Nicole E., Defining Natural Foods: The Search for a Natural Law, 26 Regent U. L. Rev. 329, 343 (2014)Google Scholar; Letter from Leslie Kux, supra note 12.

14 See, e.g., Notice, Request for Comment on First Amendment Issues, 67 Fed. Reg. 34,942, 34,943 (May 16, 2002).

15 There, tobacco companies fought in a concerted effort to unwind the FDA's efforts to address key public health concerns such as underage smoking and adverse health consequences that result from smoking. A core component of the tobacco industry's argument was that the data relied upon by the FDA did not demonstrate that graphic warning labels would achieve the stated goals. The United States Court of Appeals for the District of Columbia Circuit found this argument convincing, and held that the commercial speech doctrine prevented the FDA from implementing its graphic warnings label requirements. Though the agency won a second case that was brought in the Sixth Circuit, and the issue was thus ripe for review by the U.S. Supreme Court, before the high Court could consider the case, the FDA withdrew the graphic warning requirements. As of the date of this article, the FDA has yet to propose new requirements for graphic warnings on tobacco products. Disc. Tobacco City & Lottery, Inc. v. U.S., 674 F.3d 509 (6th Cir. 2012); R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205 (D.C. Cir. 2012).

16 We define “costs of regulation” broadly to include financial, reputational, and opportunity costs that are associated with responding to litigation that challenges agency action.

17 21 U.S.C. §§ 453, 457, 601, 606-607, 1033, 1036 (2012); Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA's Resources and Regulatory Authority 2 (2014), available at∼/media/research/files/papers/2014/06/26-food-labeling-litigation/negowetti_food-labeling-litigation.pdf. The USDA is also responsible for products that bear the label USDA Organic, though many USDA Organic foods also fall under the FDA's umbrella since food labeled “USDA Organic” is still regulated by the FDA in the traditional sense (i.e., prohibition of misbranding and adulteration). 7 U.S.C. § 6505(a)(2); Organic Agriculture, U.S. Department Agric., (last updated Jan. 9, 2015).

18 21 U.S.C. § 343(q)(1) (2012); Negowetti, supra note 17, at 2.

19 15 U.S.C. §§ 52, 55 (2012); Enforcement Policy Statement on Food Advertising, Fed. Trade Commission (May 13, 1994),

20 Food Standards and Labeling Policy Book—Natural Claims, U.S. Department Agric. Food Safety & Inspection Service (Aug. 2005) [hereinafter Labeling Policy Book],

21 Id.

22 Id.

23 See id.

24 See id.

25 Notice, United States Standards for Livestock and Meat Marketing Claims, Naturally Raised Claim for Livestock and the Meat and Meat Products Derived From Such Livestock, 74 Fed. Reg. 3541, 3544 (Jan. 21, 2009) (“AMS reiterates that the Naturally Raised Marketing Claim standard is independent of and distinct from FSIS label approval policies governing use of natural claims”).

26 Id. at 3541; see also U.S. Dep't of Agric., AMS No. 008-09, USDA Establishes Naturally Raised Marketing Claim Standard (2009), available at

27 74 Fed. Reg. at 3545 (excepting “ionophores used as coccidiostats for parasite control”).

28 See Labeling Policy Book, supra note 20.

29 Graham, Jay P. et al., The Animal-Human Interface and Infectious Disease in Industrial Food Animal Production: Rethinking Biosecurity and Biocontainment, 123 Pub. Health Rep. 282, 283 (2008)Google ScholarPubMed.

30 Id.

32 Id.

33 Id.

34 Id.

35 Stathopoulos, Anastasia S., Note, You Are What Your Food Eats: How Regulation of Factory Farm Conditions Could Improve Human Health and Animal Welfare Alike, 13 N.Y.U. J. Legis. & Pub. Pol'y 407, 415 (2010).Google Scholar

36 See Notice, United States Standards for Livestock and Meat Marketing Claims, Naturally Raised Claim for Livestock and the Meat and Meat Products Derived From Such Livestock, 74 Fed. Reg. 3541, 3545 (Jan. 21, 2009).

37 See Food, Farm Animals, and Drugs, Nat'l Resources Def. Council, (last visited May 7, 2015).

38 Kerry Trueman, Let's Ask Marion Nestle: Could The USDA Get Any Cheesier? (Nov. 7, 2010),

39 See Michael Moss, While Warning About Fat, U.S. Pushes Cheese Sales, N.Y. Times, Nov. 6, 2010,

40 See Notice, United States Standards for Livestock and Meat Marketing Claims, Naturally Raised Claim for Livestock and the Meat and Meat Products Derived From Such Livestock, 74 Fed. Reg. 3541, 3543 (Jan. 21, 2009); USDA standard for naturally-raised meat sanctions unnatural practices, Consumers Union (Jan. 16, 2009), [hereinafter USDA Sanctions Unnatural Practices]. In addition, under the USDA guidelines, the animals themselves can be genetically engineered. See id.

41 See 74 Fed. Reg. at 3543.

42 See discussion infra pp. 9-13.

43 21 U.S.C. § 341 (2012).

44 See, e.g., Nutrition Labeling and Education Act of 1990, Pub. L. No. 101-535, 104 Stat. 2353 (codified as amended at 21 U.S.C. § 343).

45 Nutrition Labeling and Education Act of 1990, § 2 (codified as amended at 21 U.S.C. § 343(q)(1)).

46 21 U.S.C. § 343(a).

47 Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definitions of Terms, 56 Fed. Reg. 60,421, 60,466 (proposed Nov. 27, 1991) (to be codified at 21 C.F.R. pts. 5, 101, 105).

48 Food Labeling: Nutrient Content Claims, General Principles, Petitions, Definitions of Terms; Definitions of Nutrient Content Claims for the Fat, Fatty Acid, and Cholesterol Content of Food, 58 Fed. Reg. 2302, 2407 (Jan 6, 1993) (to be codified at 21 C.F.R. pts. 5, 101).

49 Id.

50 Id.

51 Id.

52 See supra note 19 and accompanying text.

53 Negowetti, Nicole E., A National “Natural” Standard for Food Labeling, 65 Me. L. Rev. 581, 584 n.13 (2013)Google Scholar (citing Termination of Proposed Trade Regulation; Rule on Food Advertising, 48 Fed. Reg. 23,270, 23,270 (May 24, 1983) (to be codified at 16 C.F.R. pt. 437); Food Advertising—Proposed Trade Regulation Rule, 40 Fed. Reg. 23,086 (proposed May 28, 1975) (to be codified at 16 C.F.R. pt. 437); Food Advertising, 39 Fed. Reg. 39,842, 39,849 (proposed Nov. 11, 1974) (to be codified at 16 C.F.R. pt. 437)).

54 See Product Labeling: Definition of the Term “Natural”, 71 Fed. Reg. 70,503, 70,505 (Dec. 5, 2006), available at (describing the USDA's 1982 guidance on the “natural” labeling).

55 Id.

56 See Labeling Policy Book, supra note 20.

57 15 U.S.C. § 45(1) (2012).

58 Id. § 52(a).

59 Id. §§ 52(a), 55(a).

60 Working Agreement Between FTC and Food and Drug Administration, 4 Trade Reg. Rep. (CCH) ¶ 9850.01 (1988); see also Enforcement Policy Statement on Food Advertising, Fed. Trade Commission (May 13, 1994),

61 What is the meaning of 'natural' on the label of food?, U.S. Food & Drug Admin., (Apr. 29, 2015).

62 Consumer Reports, Food Labeling Poll 4 (2007), available at

63 Id. at 9.

64 Consumer Reports, Food Labels Survey: 2014 Nationally-Representative Phone Survey 2 (n.d.) [hereinafter Food Labels Survey], available at

65 Id. at 8.

66 Consumer Reports, supra note 62, at 16.

67 Context Mktg., Beyond Organic: How Evolving Consumer Concerns Influence Food Purchases 4 (2009), available at

68 Id.

69 Id.

70 National Survey: Green is Official Mainstream—But Consumers Are Confused, Skeptical About Products, Bus. Wire (June 30, 2009),–-Consumers#.VQvY10KxNLo.

71 See 7 U.S.C. §§ 6501-6523 (2012).

72 See id. § 6504.

73 See 7 U.S.C. §§ 6504, 6511.

74 Consumer Reports, Food-Labeling Poll 2008, at 15 (2008), available at

75 Id.

76 Id.

77 Id.

78 Foods labeled 'natural' may not be, consumer advocates warn, N.Y. Daily News (Feb. 10, 2014) [hereinafter Foods labeled ‘natural’], (citing a comprehensive study by Nielsen).

79 See Nancy Gagliardi, Consumers Want Healthy Foods--And Will Pay For Them, Forbes (Feb. 18, 2015),; Katie Little, Better food, more $$: Do people pony up?, CNBC (Jan. 20, 2015),; see also Kampffmeyer Food Innovation, How to Make Clean Label 50-51 (n.d.), available at (European study finding that 72% of people surveyed would pay a price premium for food labeled Natural).

80 See Little, supra note 79.

81 Esterl, supra note 9, at B1.

82 See Ferdman, supra note 3.

83 See Taylor Echolls, Research That Indicates the Growth in Natural Food Sales & Organic Food Sales, Science: Opposing Views, (last visited May 7, 2015).

84 See Aaron Levitt, How To Ride the Organic & Natural Products Wave, Investopedia (May 6, 2014),

85 Apaolaza, Vanessa et al., Natural Ingredients Claim's Halo Effect on Hedonic Sensory Experiences of Perfumes, 36 Food Quality & Preference 81, 81-82 (2014)CrossRefGoogle Scholar.

86 See id.; Walters, Amber & Long, Marilee, The Effect of Food Label Cues on Perceptions of Quality and Purchase Intentions Among High-Involvement Consumers with Varying Levels of Nutrition Knowledge, 44 J. Nutrition Educ. & Behav. 350, 350-351 (2012)CrossRefGoogle ScholarPubMed.

87 Apaolaza et al., supra note 85, at 82.

88 Margaret A. Hamburg, Comm'r, U.S. Food & Drug Admin., Remarks at the Atlantic Food Summit (Mar. 4, 2010), available at

89 See Elaine Watson, Symphony Consulting: Growth rates of key label claims-organic, natural, gluten-free-are leveling off, Food (May 3, 2013),

90 Ivory Agan & Neal H. Hooker, A “Natural” Gap?: Cases, Claims and Consumers (Draft 2014) (on file with author).

91 U.S. Gov't Accountability Office, GAO-08-597, FDA Needs to Better Leverage Resources, Improve Oversight, and Effectively Use Available Data to Help Consumers Select Healthy Foods 5 (2008).

92 See Guidance Letter from Barbara O. Schneeman, Dir., U.S. Food & Drug Admin. Office of Nutrition, Labeling & Dietary Supplements, to the Industry (Oct. 2009) (on file with author), available at

93 Id.

94 Michael Taylor, How the FDA Is Picking Its Food Label Battles, Atlantic (July 19, 2010),

95 Litigation Project, Center for Sci. Pub. Int., (last visited May 7, 2015).

96 See id.; see also Negowetti, supra note 17, at 7.

97 Ctr. for Sci. in the Pub. Interest, Rebuttal to FDA Report to Congress on Agency Enforcement Actions Regarding Health-Related Claims on Food Labels 5 (2006), available at

98 Esterl, supra note 9, at B1.

99 Negowetti, supra note 17, at 1.

100 See id. at 7.

101 Buckman Co. v. Plantiffs' Legal Comm., 531 U.S. 341, 349 n.4 (2001) (FDCA); Merrell Dow Pharm. Inc. v Thompson, 478 U.S. 804, 806-07, 810 (1986) (FDCA); Holloway v. Bristol-Myers Corp., 485 F.2d 986, 997 (D.C. Cir. 1973) (FTC).

102 21 U.S.C. § 343-1(a) (2012).

103 Cal. Health & Safety Code § 110100 (West 2012).

104 See, e.g., Negowetti, supra note 17, at 9-10 (collecting cases).

105 Id. at 13.

106 Id.

107 Id.

108 Id.

109 Id. at 7.

110 Id.

111 Id.

112 Id. at 9.

113 Pappas v. Naked Juice Co. of Glendora, No. LA CV11-08276 JAK (PLAx) (C.D. Cal. Aug. 7, 2013) (order granting motion for preliminary approval of class action settlement), available at; Susanna Kim, Naked Juice Class Action Settlement Offers Up to $75 Per Consumer, ABC News (Aug. 27, 2013),

114 Complaint at 2, Vicuña v. Alexia Foods, Inc., No. 4:11-cv-6119-PJH (N.D. Cal. filed Dec. 5, 2011). The lawsuit against Alexia Foods followed the FDA's issuance of a Warning Letter to the company regarding Natural claims on another Alexia product. There, the FDA indicated that the Natural claim was false and misleading because the product—Alexia's Roasted Red Potatoes & Baby Portabella Mushrooms—contained a synthetic chemical preservative. Warning Letter from Michael W. Roosevelt, Acting Dir., U.S. Food & Drug Admin. Office of Compliance, to Alex Dzieduszycki, Chief Exec. Officer & President, Alexia Foods, Inc. (Nov. 16, 2011) (on file with U.S. Food & Drug Admin.), available at

115 Negowetti, supra note 17, at 10; Alexia Settlement Website, (last visited May 7, 2015).

116 Cox v. Gruma Corp., No. 12-CV-6502 YGR, 2013 WL 3828800, at *2 (N.D. Cal. July 11, 2013) (order granting motion to dismiss in part and for referral to the FDA).

117 Id.; see Winters, Diana R.H., Inappropriate Referral: The Use of Primary Jurisdiction in Food-Labeling Litigation, 41 Am. J.L. & Med 238 (Forthcoming 2015)Google ScholarPubMed.

118 Letter from Leslie Kux, supra note 12.

119 Id.

120 State Labeling Initiatives, Center for Food Safety, (last visited May 7, 2015) [hereinafter State Labeling Initiatives] (collecting state ballot initiatives).

121 See id.

122 See Negowetti, supra note 17, at 11-13 (discussing litigation against food companies that label their food as “natural” despite containing GMOs).

123 Id. at 14; see also Questions & Answers on Food from Genetically Engineered Plants, U.S. Food & Drug Admin., (last updated July 22, 2014).

124 See Wilson, Sabrina, Note, Induced Nuisance: Holding Patent Owners Liable for GMO Cross-Contamination, 64 Emory L.J. 169, 171 (2014)Google Scholar.

125 35 U.S.C. § 101 (2012); Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) (holding that products of nature are not patentable subject matter under 35 U.S.C. § 101). Notably, Monsanto used to define GMOs to include “plants and animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.” Negowetti, supra note 17, at 14. The company has since changed its definition, which now reads: “A genetically modified organism (GMO) is any organism the genetics of which have been altered through the use of modern biotechnology to create a novel combination of genetic material. GMOs may be the source of genetically modified food ingredients and are also widely used in scientific research and to produce goods other than food.” See Glossary, Monsanto, (last visited May 7, 2015).

126 Patentable Subject Matter—Living Subject Matter, [Mar. 2014] MPEP (online) § 2105, R-08.2012 (2014), available at; see also Parasidis, Efthimios, A Uniform Framework for Patent Eligibility, 85 Tulane L. Rev. 323 (2010)Google Scholar (discussing patent eligibility and the product of nature doctrine).

127 Negowetti, supra note 17, at 14.

128 See, e.g., State Labeling Initiatives, supra note 120.

129 An act relating to the labeling of food produced with genetic engineering, § 2, 2014 Vt. Acts & Resolves 346 (to be codified at Vt. Stat. Ann. tit. 9, §§ 3041, 3048).

130 An Act Concerning Genetically-Engineered Food, 2013 Conn. Pub. Acts 566 (codified as amended in scattered sections of tit. 21a of Conn. Gen. Stat.).

131 An Act to Protect Maine Food Consumers' Right To Know about Genetically Engineered Food, § 1, 2014 Me. Legis. Serv. 1 (West) (to be codified at Me. Rev. Stat. tit. 7, §§ 2591-2593).

132 Conn. Gen. Stat. Ann. § 21a-92c(a)(1) (West Supp. 2014).

133 Id. § 21a-92(17).

134 Id. § 21a-102.

135 Jennifer Chausee, California lawmakers reject bill requiring labeling on GMO foods, Reuters (May 29, 2014, 9:39 AM),

136 Elizabeth Weise, Washington state voters reject labeling of GMO foods, USA Today (Nov. 6, 2013),

137 Carey Gillam, GMO labeling fails in Colorado, Oregon; GMO ban passes in Maui, Reuters (Nov. 5, 2014, 2:28 PM),

138 Id.

139 Id.

140 Andrea Stone, GMO Food Critics See Losses at Ballot Box—and a More Hostile Congress, Nat'l Geographic (Nov. 7, 2014),

141 See Genetically Engineered Crops Banned in Humboldt County! 7th County to Vote for Ban, Center for Food Safety (Nov. 5, 2014),

142 Zauderer v. Office of Disciplinary Counsel of Sup. Ct., 471 U.S. 626, 638 (1985) (citing Friedman v. Rogers, 440 U.S. 1 (1979)).

143 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974)).

144 Zauderer, 471 U.S. at 651.

145 See id.

146 See, e.g., supra note 64 and accompanying text.

147 See Esterl, supra note 9, at B1.

148 See, e.g., Elaine Watson, Heinz is latest target in new wave of false advertising lawsuits over ‘all natural’ claims and GMOs, Food (Mar. 19, 2014),

149 Foods labeled ‘natural’, supra note 78.

150 Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18 (D.C. Cir. 2014).

151 Am. Meat Inst., 760 F.3d at 23.

152 Id.

153 U.S. Food & Drug Admin., Food Label Helps Consumers Make Healthier Choices 1-2 (2008), available at

154 Eva Sirinathsinghji, GM Crops and Water—A Recipe for Disaster, Permaculture Res. Inst. (May 7, 2013),

155 Zauderer, 471 U.S. at 657-58.

156 Id. at 659.

157 Am. Meat Inst., 760 F.3d at 25-26.

158 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 564-66 (1980).

159 Id. at 591.

160 See id.

161 Id.

162 Am. Meat Inst., 760 F.3d at 22 (quoting Zauderer, 471 U.S. at 650). Banning use of Natural claims is unlikely to pass constitutional muster. The Supreme Court has stated and reiterated that “the States may not place an absolute prohibition on certain types of potentially misleading information … if the information also may be presented in a way that is not deceptive.” Zauderer, 471 U.S. at 644 (quoting In re R.M.J., 455 U.S. 191, 203 (1982)).

163 See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 557-60.

164 Negowetti, supra note 13, at 343.

165 See id. at 330; Food Packaged as ‘Organic’ or ‘Natural’ Might be Unhealthy, NDTV Food (Oct. 9, 2014, 12:01 PM),

166 Indeed, the FDA has defined many terms often used on food labels, such as “healthy” food claims. 21 C.F.R. § 101.65(d)(2) (2014).

167 Watson, supra note 5. While setting forth a definition for Natural claims is beyond the scope of this article, it would be logical for the FDA and USDA to coordinate and provide one common definition. That the USDA has a working definition of Natural would make FDA's job easier—a straightforward solution would be to adopt the USDA definition and clarify the meaning of each term in that definition.

168 The fact that the FDA has no authority to seize food products with labels that inappropriately make Natural claims provides even more justification for regulating the claims. The FDA may seize a food product or mandate a recall only if the misbranded food is dangerous to health. 21 U.S.C. §§ 334, 3501 (2012). For example, the agency has used this authority in cases where a label is missing allergen information. See, e.g., Food Safety, US Foods, (last visited Mar. 18, 2015). Even when seizure or a recall is appropriate, the FDA must first provide the food manufacturer with notice and an opportunity to respond to the agency. 21 U.S.C. §§ 334, 3501. Seizure and a recall are a means of last resort. Id. § 336 (stating that the Secretary need not commence injunction proceedings if he believes only a warning is needed).

169 Zauderer, 471 U.S. at 651 (citing Va. Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976)) (emphasis added).