GOVERNMENT ON STEROIDS
In a letter to James Madison dated December 20, 1787, Thomas Jefferson wrote, “I own I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people.” The intellectual love of liberty that filled the mind of Jefferson and led him to distrust government power has no counterpart in Barack Obama. While Jefferson well understood the dangers of energy in government and sought to “bind” government actors “down from mischief by the chains of the Constitution,” President Obama views energetic government as his ally and ignores all constitutional constraints on the exercise of federal power. In addition to the massive expansion in federal intrusion into the private sector resulting from his health care and market reform laws, President Obama has unleashed the bureaucracy, funding it to heights never before achieved and encouraging it to become efficient in enforcing regulations of all kinds and in collecting fines. If we analogize the federal bureaucracy to an obese and sedentary man, we may view Dr. Obama’s treatment not to involve reduction in caloric intake but, rather, administration of steroids, enabling greater consumption of the fat of the land and greater activity to find that fat.
In mid to late 2010, the Obama Administration began a practice that bodes ill for the survival of the health food and dietary supplement industries. Historically, the FDA has regulated labels and labeling of foods and dietary supplements and has imposed a prior restraint on nutrient-disease claims, forbidding all claims that a nutrient in a food or dietary supplement could treat a disease (even if true) and forbidding without advance FDA approval all claims that a nutrient in a food or dietary supplement could reduce the risk of disease (even if true). Those prior restraints violate the basic premise of the First Amendment: to disarm the federal government of power to censor truthful speech. Prior restraints are particularly odious because they prevent truthful communication indispensable to the exercise of informed consumer choice. So it is that our grocery and health food stores are largely free of information concerning the latest scientific discoveries on the positive and negative effects of elements within foods. Literally tens of thousands of peer-reviewed scientific journal articles explain everything from the potential benefits of Coenzyme Q10 on prolonging the life of those suffering from congestive heart failure to the potential benefits of Vitamin D in reducing the risk of various kinds of cancer, yet that information is barred from the market by federal speech police. The effect is to deprive Americans of information that, if present, would lead to healthful choices, decreasing the incidence of preventable disease, including life threatening illnesses. As I explain in Global Censorship of Health Information, paternalistic government is costing Americans their lives.
Historically, the FTC has regulated advertising and has challenged ads as false or misleading after they are communicated. Over the years the FTC has become more aggressive in its regulatory enforcement. For the last decade, FTC has taken the position that an advertiser must possess before advertising “competent and reliable scientific evidence” that claims of health benefit in the ad are true. If it advertises without that proof in hand, its ads are deemed deceptive by operation of law even if others possess the proof and even if the proof is generally available in scientific literature. In this way FTC can condemn a message as deceptive when it is in fact truthful. That approach is consistent with FTC’s overall requirement in deceptive advertising cases. FTC shifts the burden of proof away from the government (to prove with clear and convincing evidence that an advertising statement is false) to the advertiser (to prove to a near conclusive degree that every claim of benefit is true). If the advertiser cannot prove his statements true to FTC’s satisfaction, the statements are deemed false (even if true). That burden shifting offends the First Amendment which squarely makes the government liable for proving that speech is false before it acts against the speech. That burden shifting also offends the Fifth Amendment which requires a presumption of innocence be given the accused (the burden shifting effectively deems the advertiser guilty of deception until the advertiser proves otherwise).
Most recently, the Obama Administration has intermeshed the speech suppressive workings of the FDA and the FTC, inventing a combined mega-agency that can double the punishment visited upon those accused of wrongdoing. In mid-2010 and since, the FTC has repeatedly placed in its Consent Orders a requirement that no nutrient-disease association claims be used in advertising unless the FDA has pre-approved them for use in labeling. Indeed, FTC presumes nutrient-disease associations in advertising deceptive (even if they are true) unless FDA has pre-approved them for use in labeling. In addition, FTC now demands for weight loss, immune enhancement, and respiratory enhancement claims two well-designed clinical trials in support of the effect before advertising or it will automatically deem the advertising deceptive. Those actions cast a pall of censorship over food and dietary supplement markets because many truthful claims are possible about the potential of nutrients to reduce disease that are neither FDA approved nor backed by two well designed clinical trials. Basic science, animal studies, large epidemiological studies, and case studies can all provide evidence which, viewed in total, can lead competent scientists expert in the field to conclude that there is a likelihood of an effect of a nutrient on a health condition.
It is almost never the case that science is provable conclusively, scientists make educated guesses that guide their behavior all the time and consumers likewise make decisions every day based on less than conclusive science. We are entitled to know what emerging science reveals and to make our own decision concerning how much credence we wish to give that science. Government has no legitimate role as a super editor and nanny, forbidding us from accessing information on the paternalistic notion that the government’s guess about ultimate proof is more deserving of legal prerogative than our own suppositions and on the paternalistic notion that government knows better than we do what is in our own best interest. If only well enough informed, we are able to make decisions in our own best interests, and we must accept the consequences of those decisions if we wish to be free.
The FDA has reciprocated for the FTC’s enforcement of FDA’s regulations. In a warning letter FDA issued on February 1, 2011, the FDA not only condemned a dietary supplement company for promoting its products for therapeutic benefits without advance FDA drug approval, it also ordered the party to comply with the Federal Trade Commission’s regulations on advertising as a condition precedent to satisfaction of FDA’s demands.
The ultra vires extension of FDA power into the statutory realm of the FTC (and vice versa) is a move that exceeds each agency’s respective statutory authority. In FDA v. Brown & Williamson Tobacco Corporation, the Supreme Court held FDA’s attempt to declare cigarettes a drug delivery system for nicotine unlawful under the Food Drug and Cosmetic Act. Congress gave FDA no authority to regulate tobacco products and, so, FDA’s power grab did not survive federal judicial review. ATF had historically exercised regulatory jurisdiction over tobacco products. Relying on that same decision, we may justly pronounce FDA’s enforcement of FTC regulations (and FTC’s enforcement of FDA regulations) unlawful actions in excess of statutory authority. Congress gave the agencies their respective statutory regimes; Congress gave neither the authority to invade the other’s statutory domain. Historically the two have engaged in separate enforcement of their respective statutes. This Administration’s unilateral creation of a new intertwined mega-agency is unlawful.
The union of FDA and FTC enforcement is indicative of the roving, intrusive, and boundless government preferred by President Obama. The leaders of that gargantuan government are intoxicated by their own power which they wield liberally without care for the hardships caused the American people. Each action taken to protect an interest favored by the Administration hurts an interest preferred in the market (or, in other words, by the consumer). The Obama Administration has no desire to weigh whether government action causing adverse effects on employment, public access to goods and services, or prices exceeds the perceived benefit of stopping a private practice opposed by the Administration.
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Repeatedly the full weight of the government is brought to bear on single entrepreneurs, turning minor transgressions into capital offenses that drive them out of business. In this new era, government accusations are given the same weight as proven adjudications; harms arising from government enforcement are excused based on the public interest rationales given us by the enforcers; and the calamitous effects of energetic government are misattributed to failings in the market and are used as justifications for more government, not less. A government meant to be our servant has become our master.
� 2011 Jonathan W. Emord - All Rights Reserved