The Sanctity of Free Speech

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The Sanctity of Free Speech

tatutes are the actual laws passed by Congress. Regulations are created and used by executive agencies to clarify the intent and scope of federal statutes, which the agencies are charged with administering or enforcing. It is important to note that statutes precede regulations and curtail what agencies may do, as well as what they may not do. In giving birth to an executive agency, Congress begins with an original intent. Yet original intent, as things turn out, is rarely if ever adhered to.

Witness the Food and Drug Administration (FDA), an agency that was originally intended to safeguard the American public. Was it ever the intent of Congress that the FDA should be able to violate the Constitution in carrying out a statute’s directives? Elected representatives, as well as the judiciary, are sworn to uphold the Constitution. Yet violate the Constitution is exactly what the FDA does when it prevents the exercise of the First Amendment, and no fewer than four federal court decisions have found this to be the case. To date, however, Congress has never officially reprimanded the FDA. In addition to breaking the law, the FDA fails to safeguard the public when it prevents the free dissemination of life-saving information.

The First Amendment in the Bill of Rights states that “Congress shall make no law … abridging the freedom of speech, or of the press …” Note that the Amendment does not refer to some law or any law. It says no law. Also note that the Constitution does not exempt any group from equal protection—not the press, nor any religion, nor members of any trade, including those involved in commerce, as were most of the Founders.

Now consider the Dietary Supplement Health and Education Act of 1994. This statute specifically provides for the use of claims and nutritional support statements, with the burden of proof on the government, i.e., the FDA. Yet 11 years after its enactment, it is clear that the FDA has violated the intent of Congress, and it continues to do so. Only a handful of label claims have been permitted, and every single one is compromised by the inclusion of a disclaimer stating that the evidence is weak or inconclusive, even if it is not. For example, after seven years of extensive litigation, the following health claim was permitted: “Consumption of omega-3 fatty acids may reduce the risk of coronary heart disease. FDA evaluated the data and determined that although there is scientific evidence supporting the claim, the evidence is not conclusive.” Yet almost 99% of all the studies published on fish oil have concluded that it can reduce the risk of coronary heart disease. What is wrong with this picture?

The Dominance of Big Pharma

The FDA can get away with ignoring the law thanks to the power of large pharmaceutical companies—“Big Pharma,” the very industry it is supposed to regulate. A revolving door between Big Pharma and the FDA ensures that every committee is in the hands of the pharmaceutical pushers. Indirectly, Big Pharma pays the salaries of FDA officials and functionaries, in addition to supporting the worth of their pharmaceutical stock portfolios.

In return for these benefits, all the FDA need do is to help maintain the “conclusive” standards for judging the evidence for drugs, albeit at huge expense, and to police the unprotected supplement industry. The result is the competitive advantage that Big Pharma enjoys over smaller pharmaceutical companies and the entire supplement industry. As is true elsewhere in the world—especially in Europe, where Big Pharma has had an even greater influence—laws or regulations that tie the hands of supplement companies by preventing them from exercising free speech add handsomely to the drug companies’ bottom line.

Restoring the First Amendment Rights of Consumers

Given the current state of regulatory affairs, there is a great need for a statute that singularly addresses this villainy and reaffirms free speech as being sacrosanct. We simply cannot allow the FDA to continue flouting the law. We must force Congress to confront its role in the charade and to uphold the First Amendment, which, for political reasons, it cannot risk resisting openly.

Enter the Health Freedom Protection Act of 2005 (H.R. 4282), which was introduced into Congress by Ron Paul, M.D. (R-TX) on November 10, 2005. Per Dr. Paul, “This bill restores the First Amendment rights of consumers to receive truthful information regarding the benefits of foods and dietary supplements by codifying the First Amendment standards used by federal courts to strike down the Food and Drug Administration (FDA) efforts to censor truthful health claims. The Health Freedom Protection Act also stops the Federal Trade Commission (FTC) from censoring truthful health care claims.”

As things stand, not only has the scant progress in truthful label claims been slowly ground down, but the FDA has also held a public meeting (in November 2005) on “Assessing Consumer Perceptions of Health Claims.” At the meeting, the FDA’s recent consumer perception surveys were reviewed, and the FDA contended that there is proof that health claims hopelessly confuse consumers. What they are doing is laying the foundation for revoking the health claims mini-era and returning to the pre-Pearson vs. Shalala days of general censorship.

The Battle for Truth

The lines are drawn, and when Congress reconvenes in 2006, the battle will ensue. What is at stake is nothing less than—repeating the words of the Founders—our lives, our fortunes, and our sacred honor. To put it another way, all we have to lose is our health, our well-being, and what should be our inviolable rights. Let’s not let that happen.

For health and freedom,

Will Block

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