Court Finds For ANH-USA In Stunning Victory Over FDA
(Thank You Jonathan Emord!)
June 1, 2010
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This was a key federal case argued for ANH-USA and other plaintiffs
by Jonathan Emord and the Emord law firm. It was a remarkable seventh
victory for Emord over the FDA in the area of allowable health claims
for food or supplements. Unless reversed on appeal, the decision
restricts the Agency’s ability to place gag orders on the emerging
science behind healthy foods and dietary supplements.
The case revolved around what are called qualified health claims. In a
qualified health claim, the producer of a food or supplement tries to
share the state of the science behind the product with the public. If
the science is less than completely conclusive, usually the case with
food or food related items, the claim is “qualified”.
The FDA has never liked qualified health claims. It wants food and
supplements to be treated like drugs and forced to submit to the full
FDA approval process in order to make any health claims. Of course this
is crazy. Food and supplements, being natural, cannot usually be
patented, and nobody can afford to spend a billion dollars to gain FDA
approval of claims on an unpatented product that anyone else can sell.
The FDA knows this full well. The real reason it does not want any
health claims for food or supplements is probably that it fears that
this will create competition for approved drugs– and drugs pay the
Agency’s bills. This is a scandal that badly needs to be addressed. The
Environmental Protection Agency does not, so far as we can see,
represent the interests of coal mining companies. So why should the FDA
represent the drug companies rather than the public? Probably because
the monopoly created for drug companies by the FDA has given the drug
companies vast sums to spend to gain influence. Coal companies are poor
by comparison.
The judge in this case, Ellen Huvelle of the United States District
Court of the District of Columbia, rendered a summary judgment. That
means she felt the case was clear from the start. The FDA was violating
freedom of speech by saying that no cancer related health claims about
the mineral selenium could be made unless the science was completely
conclusive or unless ridiculous and misleading disclaimers were added to
the message.
Although this case was focused on selenium, it has much bigger
ramifications. The judge was in effect saying that food and dietary
supplement producers have a right under the free speech doctrine to talk
about the science behind the product so long as they accurately
represent that science. The FDA is currently flush with cash from new
appropriations. It may appeal. Even if it does not appeal, it may fall
back into a passive aggressive stance of quibbling over every word of
every qualified claim. But at some point, the accumulation of court
decisions against the Agency should finally result in some real change.
Although the struggle is far from over, this court victory is an
important milestone along the way to an eventual victory for free
speech, uncensored science, and common sense.
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