Judges rule that excerpts from scientific/medical journal articles
can be used in advertising and promotional materials,
protected by the First Amendment and New York state law.
This sets a significant precedent.
A federal appeals court found that opinions about scientific studies,
at least when two private parties are involved in cases involving the Lanham Act,
is protected free speech.
If you say that a food is healthy and may help protect against heart disease, diabetes, or arthritis,
your words have magically changed that food into a drug.
And, guess what, that’s illegal.
Now you’ve created an illegal drug and that’s a crime
Free Speech Win For Scientific Conclusions in Federal Court
So why after all these years have we not shared all that great research about how food and nutrition can impact public health, access to food and opportunity as well as workforce development? Where are we today? Take a look at the disruption in our food sector. Amazon buying Whole Foods and thousands of small scale rural and urban growers building local food systems.
From Alliance for Natural Health July 9, 2013
In this case, the manufacturer of a lung surfactant—a detergent-like agent that reduces the surface tension of the liquid film covering the inner lining of the lung’s small air sacs (alveoli) to help keep lungs from collapsing and help patients breathe better—brought a false advertising suit against a competitor.
The lawsuit alleged that the competitor paid for research designed to show that the competitor’s product was superior; that the findings were false and deceptive; and that the competitor disseminated those findings through an article published in a scientific journal and through promotional material citing the article’s conclusions.
The plaintiff didn’t claim that the competitor distorted the article’s findings, but that the findings themselves were inaccurate, and by publishing them, the plaintiffs suffered damage.
The main question was whether the defendant’s statements about the study were false and misleading under the Lanham Act, which is the primary federal trademark law in the US (the court also looked at this under NY state law).
They didn’t consider the question of whether the study findings themselves were false—only whether their statements about the study were false or misleading. The panel ruled against the plaintiff and found that the defendant did not misrepresent the research findings, and ruled the defendant’s statements to be scientific “opinion,” not fact, and therefore protected speech under the First Amendment.
This sets a significant precedent. A federal appeals court found that opinions about scientific studies, at least when two private parties are involved in cases involving the Lanham Act, is protected free speech.
Whether this ruling can be applied against the Federal Trade Commission’s recent actions toward supplement makers for making alleged “false and misleading claims” by citing scientific studies remains to be seen, as the laws involved are different. You may recall the FTC’s lawsuits against companies such as POM Wonderful for false advertising, even though POM cited scientific articles and studies.
Increasingly, the FTC appears to be applying the FDA’s pharmaceutical approach toward all health claims, including those for food or supplements, via consent decrees, as we discussed last year. These consent decrees are requiring manufacturers to obtain the FDA’s approval of any health claims prior to making them in advertising, and are insisting on a standard of double random controlled studies. In effect, the FTC seems to be doing what the FDA itself would like to do but is barred from doing. It seems to be an end-run around FDA law.
Given this background of increasing government censorship of science, this latest court ruling is very welcome. Companies cannot afford the millions of dollars needed to take a natural, non-patentable product through the FDA drug approval process in order to establish health claims. However, there is a lot of valid scientific literature explaining benefits of natural products, and companies should be able to use it for advertising purposes to inform the public without threat of fines or even jail.
This was the logic behind our push for Free Speech About Science (FSAS). A bill to reintroduce the Free Speech About Science Act is currently being redrafted. We will keep you posted as things. A resurrection is long overdue.
Is The FDA Losing It’s Mind?
Here’s an example from recent history that speaks to how far certain interests will go to separate us from our food. Before any science came along to validate the idea that food is the key driver to human health and development.
Why is it that after the scientific validation for nutrition, vitamins, minerals, amino acids, as the building blocks for all life, and that they comprise our food, why wouldn’t that story be worth shouting from the rooftops?
What if the foods we all eat got to tell it’s nutritional bona fides as medicine? Or, at the very least, beneficial and highly recommended for health and wellness. Thanks to CathyBurt at TimberJay.com for the alert on the FDA losing it’s mind.
The FDA Wants To Make Cherries, Walnuts Into Illegal Drugs
The FDA has sent a warning letter to the president and CEO of Diamond Foods stating that the firm’s packages of shelled walnuts are “in violation of the Federal Food, Drug and Cosmetic Act”. Why? Because Diamond Foods dared to list some of the health benefits of walnuts on its website. Health benefits which have been scientifically researched and proven. The FDA says that the walnuts are being “promoted for conditions that cause them to be drugs because these products are intended for use in the prevention, mitigation and treatment of disease”.
In other words, if you say that a food is healthy and may help protect against heart disease, diabetes, or arthritis, your words have magically changed that food into a drug. And, guess what, that’s illegal. Now you’ve created an illegal drug and that’s a crime
Even though potato chips are mostly a deep fried snack food, with no scientifically proven health benefits, the FDA has no problem with FritoLay listing on its website some of what they claim are the health benefits of potato chips. We all know that carbohydrates fried in fat and covered with salt are just not healthy to eat. Plus they definitely won’t give you the GMO Free certification to go along with all their other nutritional needs products. Can anyone say “Gluten Free” ?
This certainly seems like a FDA double standard and it is just not acceptable for a government agency to disregard its own mission of educating the public and promoting health.
The Free Speech about Science Act (HR 4913) was a bipartisan bill introduced into the House of Representatives on March 23, 2010. This legislation protects basic free speech rights, ends censorship of science and enables the natural foods and health products community to share peer-reviewed scientific findings with the public. The bill had the potential to educate the public about the real science behind natural health. This would have enabled the public to have access to credible information that they can use to make wise dietary choices. It died. It was reintroduced and it died again.
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