Comments on: Health claims: Should the First Amendment protect bad science?

By: The Bad, the Bold and the Bogus: Food Industry Health Claims to Watch Out For | EcoSalon

Thu, 17 Jun 2010 22:40:52 +0000

[...] whether these letters will translate into actual regulation. Food Politics expert, Marion Nestle, doesn’t think so. She thinks industry will turn the food labeling cause into a First Amendment fight that the FDA [...]

By: David I

David I — Tue, 15 Jun 2010 21:09:46 +0000

Unfortunately corporations have been considered “persons” under the law for a very long time.

Free speech should be protected, period. But this is not free speech, it’s fraud. Snake oil shenanigans are illegal. I can’t package iced tea and sell it as a treatment for cancer so how do these idiots get away with this?

By: Rich

Rich — Tue, 15 Jun 2010 03:38:46 +0000

I think the First Amendment protection of claims not scientifically backed is correct. Having the government decide whether the conclusions of scientific studies are correct, or whether the study was properly executed or relevant to authorize a manufacturer’s claim is not what I want bureaucrats doing for me. If producers make a false and fraudulent claim, you and a bunch of attorneys general can sue the retailer and the manufacturer. Fair enough. Having the government decide what should be protected speech and what should not be is a slippery slope that will eviscerate the First Amendment. I do agree that products such as you describe can be better screened by educated parents who can understand the nature of the ingredients and who can decide not buy the product. But there is always a cost for freedom. This is one of those situations.

By: stan

stan — Sun, 13 Jun 2010 13:42:34 +0000

We need to clean up the FDA and fund it without the assistance of the pharmaceutical and food industries. There’s a revolving door of employees going back and forth, just like we’re seeing with BP and the oil regulators. You’ll never have unbiased decisions being made.

By: Neil

Neil — Sun, 13 Jun 2010 02:13:46 +0000

This is the problem with the Daubert decision. Judges and lawyers who are not science experts get to decide what is science and what is free speech. A few people like you, Marion are willing to defend science in the public interest. Science must be humane ( tolerant of the human being on the recieving end of the science, be willing make adjustments for errors in measurement and be free of corporate influence to discover matters of truth. We, humans, are not corporate guinea pigs.

By: Jo

Jo — Sat, 12 Jun 2010 03:15:36 +0000

I am most certainly not a lawyer, but it seems to me, philosophically that is, that society has to decide to that are some situations in which to value public interest over the rights of corporations. If the FDA already has the stance that products claims must be truthful and not misleading, then this foundation is there, but somewhere along the way it is unraveling. As an American, I do appreciate the spirit of “corporate personhood”, but, as I said when I began, there has to be some situation when the rights of actual American citizens takes precedent. I also can’t believe that the majority of Americans would not agree that health claims should be treated more stringently. All these products with science fiction claims need to be nipped in the bud.

By: Michele Simon

Michele Simon — Sat, 12 Jun 2010 00:14:43 +0000

OK, lawyer hat on: Of course the founding fathers intended the First Amendment to apply to political and other types of individual speech, and had no clue that one day the Supreme Court would protect the likes of Enfagrow.

Unfortunately, we are stuck with decades of legal jurisprudence in which the Supreme Court has afforded corporations numerous rights under the Constitution. So, the problem goes beyond the First Amendment. The problem stems from “corporate personhood,” the legal fiction that corporations are treated as individuals under the law, or at least under some laws.

Now, what I’ve never been able to understand is how food companies get away with making any claims that are meant for supplements. I have seen some of the cease and desist letters you mentioned from FDA (I recall one about a cereal with St Johns Wort). If FDA says you can’t pretend a food is a supplement by making supplement-type claims, then how are any food/beverage companies still getting away with this? I wonder if this has less to do with the First Amendment than with politics?

I am not sure FDA needs new lawyers, they may need better direction and leadership to be able to take stronger stands. Doesn’t how a regulatory agency acts come from the top?

By: JE

JE — Fri, 11 Jun 2010 18:53:29 +0000

The Alliance For Natural Health has a somewhat different take on their legal victory over the FDA:

http://www.anh-usa.org/court-finds-for-anh-usa-in-stunning-victory-over-fda-thank-you-jonathan-emord/

The lawsuit dealt with qualified health claims, not structure/function claims.

By: melissa

melissa — Fri, 11 Jun 2010 16:04:04 +0000

We already have other laws that protect consumers from losing money because companies lied to them about what they were getting. I don’t see this as any different.

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Fri, 11 Jun 2010 14:54:22 +0000

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