FDA PRESUMES ITSELF OMNISCIENT AND CONSUMERS IGNORANT
Do you think you are intelligent enough to decide for yourself the relative worth of scientific findings concerning the disease treatment and risk reduction effects of nutrients and foods? The FDA thinks you are not and that it must decide such questions for you in the first instance. Indeed, the FDA bans from the grocery store, the health food store, and online all commercial claims associating a food or nutrient with disease, regardless of whether the claims are supported by science. That broad prior restraint on speech contradicts the very premise of the First Amendment. As James Madison explained in defense of the First Amendment in his Virginia Resolutions aimed at challenging the Alien and Sedition Acts, while the law in Great Britain forbad prior restraints, the law of the United States as stated in the First Amendment went farther, forbidding the federal government not only from adopting prior restraints but also from banning speech after the fact.
The FDA’s prior restraint on disease treatment and prevention information in the market is thus directly contrary to the core purpose of the First Amendment. That prior restraint is a throwback to an age preceding the European Enlightenment Era when the state by decree of the Crown could ban any published work that the Crown deemed unfit for licensure. Likewise, in our day the FDA sits like an absolute monarch banning on pain of federal prosecution (and even incarceration) any utterance from a seller of foods or supplements to that seller’s customers concerning the therapeutic benefits of foods and supplements. The right to communicate therapeutic information is by statute and FDA enforcement the exclusive province of drug companies, thus giving those companies a monopoly.
We all stand to benefit tremendously from understanding which foods contain nutrients of therapeutic benefit to us. Likewise, we stand to benefit from access to the latest scientific evidence on the potential benefits of particular nutrients sold as dietary supplements. Yet FDA stands as a great censor, keeping from the market all such information. FDA shrouds consumers in a veil of ignorance at the point of sale on the paternalistic assumption that government knows better than the individual what is in that individual’s best interest.
Indeed, FDA spends millions in tax dollars monthly dispatching inspectors to food and supplement companies, blocking the import of foods and supplements bearing forbidden claims, raiding food and supplement plants for claim violations, and prosecuting the hapless victims of censorship. All the while drugs too unsafe for the market are authorized by the agency with a wink and a nod, an agency that is a captive of the leading drug firms by statutory design and by agency operation.
While the FDA fawns over select drug companies, helping to protect those companies’ interests even at the expense of patients’ lives, it holds those who sell dietary supplements in contempt even when the products they sell are demonstrably beneficial, showing profound intolerance for a supplement market in which death or serious injury is the rare exception.
If the First Amendment were applied in earnest to the FDA’s censorship regime, the statutory provision requiring agency prior approval of nutrient-disease claims and the precedent upholding FDA’s absolute ban on food and supplement disease treatment claims would be held unconstitutional. Instead, FDA (as the founding fathers intended for the entire federal government) would be disarmed of the power to impose prior restraints on speech. Instead, FDA would be obliged to prosecute parties after the fact and only in instances where it possessed proof, rather than speculation, that claims actually deceived and caused injury.
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If the day yet comes when FDA is forced to accept the First Amendment limits on its power, consumers will experience an apotheosis. Information on the actual and potential effects of foods and nutrients on disease would become ubiquitous alongside fruits and vegetables, healthy beverages and food bars, and dietary supplements in grocery stores, health food stores, and online, enabling people to chart a course based on the potential of substances to improve health, reduce disease risk, and treat disease. The health of the nation would improve. On that great day, as was intended in 1791 by James Madison in the First Congress, Americans would once again be sovereign in matters of speech, entrusted with the power to decide for themselves the relative merits of scientific speech offerings without the intermeddling of a paternalistic and politically motivated government.
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