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EUROPE ENTERS A NUTRITION SCIENCE DARK AGE

 

By Attorney Jonathan Emord
December 14, 2009
NewsWithViews.com

As the clock strikes 12:01AM on January 1, 2010, Europe will enter a nutrition science Dark Age. The stultifying effects of that backward movement will hit food and dietary supplement companies hard all around the world. The movement toward replacing private choice with government fiat proceeds apace internationally. Europe’s condemnation of food supplements and claims about them is among the latest examples of that movement.

The nations of Europe gave up considerable national sovereignty to the European Union a number of years ago. The members states have repeatedly reaped the bitter fruit of that decision. One of those bitter fruits is about to fall from the EU tree. The European Food Safety Authority (EFSA), established to preside over food supplements and claims for food supplements by the European Commission, has determined that only a small percentage of food supplements is sufficiently safe and bioavailable to remain on the European market. Under European Commission regulations no food supplement may be lawfully sold anywhere in Europe unless EFSA scientists opine that the food supplement is both safe and bioavailable as “substantiated by generally accepted scientific evidence.” EFSA makes that determination in response to dossiers submitted from the regulated companies. If no dossier is submitted for a nutrient either because the science required cannot be obtained affordably or because no one has the resources to pursue the claim, EFSA condemns the nutrient, deeming it inappropriate for market.

Thus far out of over 40,000 dossiers submitted, EFSA has limited its authorizations to certain vitamins and minerals and has rejected wholesale all other vitamins, minerals, herbs and botanicals of various kinds. Moreover, it has refused to allow claims of health benefit for a whole host of products. These are the very same products that have been legally sold in Europe for decades without any significant injury to the population. In short, EFSA is achieving a massive constriction in the product and information offerings in the European marketplace to the great detriment of European consumers. Fully informed consumer choice is being wiped out. EFSA is dumbing down the European marketplace, ridding it of substances that have improved the lives of Europeans and of emerging science necessary to comprehend the potential health benefits of food supplements.

This draconian system of prior restraint over products and scientific speech deprives European consumers of the right to determine for themselves what food elements to ingest and what credence to give emerging science concerning food supplements. Those decisions are now being made by EFSA bureaucrats intolerant of dissent from their new state orthodoxy on nutrition science.

EFSA is the nanny state writ large. Its scientists presume to know better than all private scientists, all food supplement manufacturers, and all consumers what is in the best interests of those consumers. In the real world of nutrition science, virtually nothing can be said to have been proven to a conclusive degree. Science, including nutrition science, is evolutionary and open to debate. Scientists rarely agree on the extent to which a proposition backed by studies is proven. Consequently, almost all of the emerging science on which consumers depend to exercise informed choice is based on credible, but inconclusive evidence. That should not surprise us because almost all medical science upon which physicians make life and death decisions every day is likewise in a realm of relative scientific uncertainty (lacking conclusive proof to establish its efficacy). In steps, EFSA with its own brand of state certainty substitutes its condemnatory judgment for free market exchanges, ridding the market of nutrients and censoring from the market information indispensable to the exercise of informed consumer choice.


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The environment is one not of enlightenment or respect for individual rights. It is not far from the mind set that preceded the Renaissance, a time when Copernicus waxed bold by declaring that he thought the earth orbited the sun, not the other way around. The church of old, like EFSA, views such claims of emerging science with considerable skepticism and so censors them, depriving citizens of a chance to judge for themselves the credibility of the claims.

When EFSA’s opinions become law through adoption by the European Commission, European consumers are locked out of nutrition science debate. They are deprived of emerging science and the right to exercise their own judgment as to the relative worth of nutrition science speech offerings. Instead, state censors keep the vast majority of science out of the market and permit here and there dribs and drabs to enter, skewing the information marketplace in ways they favor. Thus, an elitist guard possesses a monopoly on information access and deigns paternalistically to provide the public a small sampling it thinks “safe” for European consumption. This gross example of censorship offends the very notion of individual liberty. Europeans are thus enslaved anew by an anti-Enlightenment philosophy that regards government as the end all be all in the universe of food and nutrition science.

Depriving European consumers of emerging science leads to decisions in the market that either presume health benefits to be greater than they likely are or conversely to be non-existent. When science is kept from the point of sale, consumers tend to base decisions on non-scientific factors, such as taste or superstition. If I am ignorant of the health benefits of carotenoids and fiber in a carrot, why would I choose a carrot over a twinkie? The twinkie tastes so much better. Enlightened minds can make that election, choosing either to favor taste over science or science over taste. Not so if information that leads to enlightenment is illegal to obtain at the point of sale.

We should not think this matter limited to Europe. Not only do we depend mightily on access to European markets for our food stuffs but we also depend on European food stuffs here that may disappear as a result of EFSA’s new draconian limitations.

At a time of recession when we can scarce afford new significant limits to markets, Europe is eliminating a significant sector of its food supplement marketplace. American dietary supplements will be blocked from import and enjoined from selling dietary supplements all across Europe. There will be resultant lost profits here and unemployment. Likewise, import markets in the United States dependent on European food supplements are going to be awakened rudely to the fact that products legally sold before New Year’s are no longer lawfully saleable.

Certain ranking members of Congress and leading political managers at the Food and Drug Administration are infatuated with the European example. They would like nothing better than to replicate it here through harmonization of American laws with those of the European Union.

The world of food regulation, like so much of the world, is now marching steadily in the direction of state control and away from individual liberty. Access to products with health enhancing features will be far more difficult in Europe and in the United States in the months and years to come. Nutrition science will remain locked out of the marketplace to the grave detriment of consumers, causing only an information elite to benefit from knowledge of how certain nutrients can extend longevity and reduce the incidence of disease.

This process of bureaucratic expansion and assumption of jurisdictional control over matters previously governed by individual private decision making is an insidious encroachment that replaces freedom with servility. If we can neither be allowed to choose for consumption foods and food elements freely nor be allowed access at the point of sale to information concerning the potential of those substances to extend longevity and reduce disease risk, we can hardly call ourselves free. Does anyone seriously doubt that the decision of what to eat and the right of access to basic information on the health effects of what we eat are fundamental to human liberty?

Europe’s move back into a Dark Age in the field of nutrition science should alarm us. Although we cannot but feel the adverse impact of the European restrictions, we can only hope that the full brunt of the new Dark Age enveloping Europe is confined to that continent, not welcomed here courtesy of sympathetic agents in our Food and Drug Administration.

2009 Jonathan W. Emord - All Rights Reserved

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Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution.” He has defeated the FDA in federal court a remarkable six times, four times on First Amendment grounds. He is the author of The Rise of Tyranny.

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Certain ranking members of Congress and leading political managers at the Food and Drug Administration are infatuated with the European example. They would like nothing better than to replicate it here through harmonization of American laws with those of the European Union.