Przybocki v. United States Department of Agriculture

Procedural Issue

Article III standing — listener standing to bring a First Amendment right-to-receive-information challenge; pre-enforcement speaker standing under the credible-threat-of-prosecution test

Holding

In a First Amendment challenge to FDA and USDA regulations barring 'FODMAP' nutrient-content claims on food labels, the Ninth Circuit reversed the district court's dismissal — for lack of Article III standing — of the plaintiffs' claims against the FDA and of one plaintiff's claims against the USDA, addressing two distinct standing postures in a single opinion. First, applying Murthy v. Missouri (2024) and the circuit's own Stockton v. Brown, the panel held that a consumer with a FODMAP intolerance adequately pleaded listener standing to challenge the labeling ban: unlike the 'startlingly broad' theory Murthy rejected (a generalized interest in a speaker's work), she identified a specific willing speaker — a food company that wanted to include FODMAP information on its labels but refrained because of the regulations — and had a 'concrete, specific connection' to that speaker as an actual consumer of its products, plus a plausible allegation that other food producers would add FODMAP labeling absent the regulations. Following Diamond Alternative Energy, LLC v. EPA (2025), the panel held a plaintiff need only show 'a predictable chain of events' from third-party economic incentives, not certainty, and that a speaker's use of an alternate channel (here, its own website) to convey the same information does not defeat listener standing, extending the reasoning of Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976). Second, applying the three-part credible-threat-of-prosecution test from Susan B. Anthony List v. Driehaus (2014) and Clark v. City of Seattle (2018), the panel held the food company and its owner adequately pleaded pre-enforcement standing against the FDA: they had a concrete plan to continue selling FODMAP-labeled products, the government had communicated a specific warning (USDA's Food Safety and Inspection Service told the company, after coordinating with FDA, that FODMAP nutrient-content claims were impermissible), and FDA's general enforcement history against other undefined nutrient-content claims weakly supported the third factor; the government's refusal at oral argument to disavow future FDA enforcement also weighed toward standing. (In a separate, non-precedential memorandum disposition filed the same day — not part of this published opinion — the panel affirmed dismissal of the company's and its owner's claims against the USDA itself for failure to exhaust administrative remedies.)

Why It Matters

A useful template for pleading standing in any pre-enforcement First Amendment challenge to a labeling, advertising, or disclosure regulation, and a rare published application of listener standing after Murthy sharply narrowed that doctrine. On listener standing: don't plead a generalized 'interest' in receiving information — identify a specific willing speaker with whom the plaintiff has a concrete, personal connection (here, an actual consumer relationship to the products at issue), and note that a speaker's use of an alternate channel to convey the same information does not moot listener standing under this line of cases. On pre-enforcement speaker standing: the credible-threat test doesn't require a warning letter addressed directly to your client — a sister agency's rejection letter relaying that it coordinated with the regulator and both view the claim as impermissible can itself supply the 'specific warning' Clark requires, and a government litigant's refusal at oral argument to disavow future enforcement is affirmative evidence favoring standing, not a neutral fact. Keep the two dispositions straight: the ruling against the company's and its owner's claims against the USDA (as opposed to the FDA) rests on exhaustion, decided in an unpublished, non-precedential memorandum disposition issued the same day — it doesn't qualify or undercut anything held here on standing to sue the FDA.

About This Entry

Court: United States Court of Appeals for the Ninth Circuit
Topic: Jurisdiction
Month: September 2026
Publication status: Published
Last verified: 2026-09-02

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