Dr. Ron Paul introduced two important bills July
31, 2009 that, if passed, would rein in the excessive interference in
advanced health products by the FDA and FTC
Dr. Ron Paul, a true friend of Health Freedom in Congress,
introduced two important bills July 31, 2009 that, if passed, would rein
in the excessive interference in advanced health products by the FDA and
FTC. We are very pleased to include them in our 2009 Legislative
Educational Agenda.
Here is the Life Extension Foundation's description of the bills:
HR 3395: The Health Freedom Act. This bill removes FDA’s power of
prior restraint over all nutrient-disease relationship claims. Under the
bill, the FDA may not prohibit any statement concerning a nutrient
affecting a disease (including treatment effects) from being made in the
market and may only act against a statement once made if it possesses
clear and convincing evidence that the statement is false. Presently the
FDA blocks an enormous quantity of truthful information concerning the
effects of nutrients and foods on disease from reaching consumers. That
barrier is removed by the Health Freedom Act, but the Act preserves the
power of the government to prosecute those who communicate falsehood.
The essential purpose of the First Amendment is to disarm the federal
government of the power to impose a prior restraint on speech. The FDA
has imposed a prior restraint for decades to the health detriment of the
public. Passage of the Health Freedom Act will restore constitutional
governance by reasserting the supremacy of the First Amendment over the
Food and Drug Administration.
HR 3394: The Health Information Protection Act. This bill
prevents the Federal Trade Commission from taking action against any
advertiser that communicates a health benefit for a product unless the
FTC first establishes based on clear and convincing evidence that the
statement made is false and that its communication causes harm to the
public. Presently, the FTC reverses the Fifth Amendment burden of proof
on the government when it charges advertisers with deceptive advertising
and then demands that they prove their speech true based on
contemporaneously held documentation or be deemed to have advertised
deceptively. The Fifth Amendment requires that FTC bear the burden of
proving advertising deceptive. It may not constitutionally shift the
burden to the advertiser to prove its statements not deceptive. The
First Amendment requires that FTC not act against speech unless the
speech is probably false. It may not constitutionally accuse a party of
false advertising yet lack proof that the advertising is false and
condemn advertising based on an absence of documentation concerning the
truth of the statement rather than the presence of evidence establishing
the falsity of the statement.
These bills go to the heart of the issue of valid health claims for
nutrient products: how do companies substantiate the claims they are
making. Essentially the bills apply Constitutional principles to the
making of claims, which are a type of speech, and are therefore
protected from excessive bureaurcratic burden.
In this context it is useful to see what then Justice Sandra Day
O'Connor wrote for the Supreme Court majority in the leading health
claim free speech case, Thompson v. Western States Medical Center -
01-344, decided on April 29, 2002 - 535 U.S. 357 -
"If the First Amendment means anything, it means that regulating
speech must be a last - not first - resort."
"We have previously rejected the notion that the Government has an
interest in preventing the dissemination of truthful commercial
information in order to prevent members of the public from making bad
decisions with the information."
"Even if the Government did argue that it had an interest in preventing
misleading advertisements, this interest could be satisfied by the far
less restrictive alternative of requiring each ...to be labeled with a
warning that the [product] had not undergone FDA testing and that its
risks were unknown."
The basic rule, announced by the case, to determine constitutionally
permitted government restrictions on Commercial Speech (speech that
makes or is about an offer for a transaction) is a Two Prong Test: the
first prong is to ask two questions: (1) is the speech in question about
unlawful activity and (2) is the speech misleading. If "no" to both, the
speech is entitled to protection unless the Government can carry its
burden and prove (1) the governmental interest involved is
"substantial", (2) the regulation must "directly advance" the
governmental interest and (3) the regulation of Commercial Speech cannot
be "more extensive than is necessary to serve that interest" (quoting
Central Hudson v Public Service, 447 US 557, at 566).
Dr. Paul' s bills make it clear that the government has the burden
of proof if it seeks to restrict what marketers say about their health
related products. In this way, his bills preserve the Constitutional
protections for Commercial Speech.
Natural Solutions Foundation
www.HealthFreedomUSA.org |