Reversal of Justice
Reversal of Justice

urrently legislative efforts are coalescing to overthrow the Dietary Supplement Health and Education Act (DSHEA), which was passed in 1994 to assure the public that Congress wasn’t going to take their supplements away. The myth survives that it passed unanimously, but the House never voted, instead acceding to the Gingrich New Deal Republicans, who were to sweep out the House Democrats, many of whom were holding up DSHEA. To save their jobs, the Democrats released their stranglehold over DSHEA at the last minute. In the Senate, Orrin Hatch (R-UT) staved off a last-minute attempt to stop DSHEA as it was coming up for a unanimous consent vote in the closing minutes of the 1994 session. As events turned out, according to The Natural Food Merchandiser, “DSHEA was a political Hail Mary of unprecedented proportions.”

Dark forces are once again struggling to dismantle DSHEA. Typical is veteran control freak Rep. John Dingell (D-MI), who makes no bones about his intentions for DSHEA: “I would like to repeal the whole sorry mess.” In the principal pending legislation, Senate Bill 722—the sponsor of which is Sen. Richard J. Durbin (D-IL), supported by cosponsors Hillary Clinton (D-NY), Dianne Feinstein (D-CA), Charles E. Schumer (D-NY), and John McCain (R-AZ)—unprecedented power is given to the FDA to remove nutritional supplements from the market.

Regarding the issue of safety, reports are greatly distorted, given that a review of data from the U.S. Poison Control Centers finds that vitamin and mineral supplements are linked with few if any deaths, and deaths linked to the use of herbal products—except for ephedra (and most of these, if not all, are bogus)—are few.

By comparison, the use of over-the-counter painkillers such as aspirin and ibuprofen cause an estimated 16,000 deaths annually. The real problems are with heavily regulated prescription drugs, which, even when properly used and administered by nurses in hospitals, result in over 100,000 deaths annually. The truth is that the FDA cannot guarantee safety. The standards of the supplement industry are uniformly as high as in the U.S. food industry, which is the envy of the world in its ability to deliver high-quality, wholesome food. As an example, organic foods are the fastest growing items in America’s grocery carts. Is there really a movement for placing food cops in every grocery … every farm … every Whole Foods? Yet this, in effect, is what the enemies of DSHEA advocate for the supplements industry.

The issue of quality is equally bogus. Just as safety cannot be guaranteed by the FDA, neither can quality. All one need do is read the recall postings of the FDA to discover that the pharmaceutical industry is far from perfect, and indeed quite flawed in this respect.

We have dealt previously with the quality issue (see “The Battle for Life” in Life Enhancement, October 2003), but not sufficiently with the safety issue, the more “deadly” of the two. The public has been led, by a collusion of the media with politicians, to believe that they’re constantly in danger of losing their health to drugs masquerading as supplements, and that supplements have been inadequately tested for serious side effects—neither of which is true.

Thus we are asked to believe that rash measures are necessary and that traditional procedures are to be ignored because of the alleged emergency. Just as the FDA refuses to believe that the U.S. Constitution applies to itself, so do those who would give the FDA unprecedented discretionary power. They would give the FDA the ability to pull a whole class of supplements—vitamin C, say—if there were an association with a serious health event. An example would be a person who suffered a stroke and had been taking the vitamin. Under S. 722, the FDA could prevent the sale of all vitamin C until proof was offered that it hadn’t caused the stroke.

This would reverse the way “burden of proof” is traditionally applied, which holds that whoever asserts something to be true must prove it. This is logical, because it is impossible to disprove a negative. Something that did not happen, or does not exist, cannot be disproved. Why? Because if it didn’t happen or doesn’t exist, it has no attributes or characteristics.

A more serious, Kafkaesque reversal of jurisprudence is hard to imagine, as the sponsors of S. 722 should know. Burden of proof plays a pivotal role in our justice system, and although its standards differ depending on whether the case involved is criminal or civil, the burden is always on the government when it accuses a party of anything. And a high degree of certainty is necessary to protect the rights of citizens whose liberty is at stake or businesses whose existence is at stake. The “reasonable doubt” standard may have been used in America as early as 1770, and it is guaranteed by the due process clause of our Constitution.

As we go to press, we have learned that Michael Leavitt has been confirmed as the new Secretary of Health and Human Services—the department that presides over the FDA. In his confirmation hearings, Leavitt acknowledged, under questioning from Sen. Hatch, that he believes that DSHEA is a good law and is adequate to deal with issues of safety and quality, and that he values consumer choice in their healthcare options. We shall see.

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