The Liberty Caucus, composed of 24 members of the U.S. House of Representatives, is introducing a bill that would permit food and supplements manufacturers to make more nutrient and health claims. The group states that current restrictions, under the authority of the U.S. Food and Drug Administration, as well as the Federal Trade Commission, are tantamount to limiting freedom of speech.
?In the case of the FDA, [the bill] does a number of things: It prevents the FDA from stopping the distribution of literature, from preventing qualified claims, prevents them from waiving conflicts of interest, [and] mandates the approval of specific claims they?ve previously denied despite overwhelming scientific evidence,? said Jonathan Emord, an attorney representing the Liberty Caucus.
While an FDA spokesman declined to comment on the proposed legislation, Emord said that when health claims are disallowed or delayed, consumers are prevented from having access to health information, and manufacturers? rights are compromised. In the last year, FDA has delayed approval on numerous qualified health claims, citing a staffing shortage and a backlog of work. For example, American Longevity?s attempt to claim that lycopene has a cancer-prevention benefit has been delayed six times.
The Liberty Caucus? bill would seek to change that process by allowing marketers to make claims and putting the onus on government to prove something false.
Nevertheless, a study just published by FDA found that when four different methods of communicating nutrient/health claims to consumers were tested, ?none … performed very satisfactorily.?
Using four different methods—two of which relied on text and two that relied on a report-card style assessment—researchers found that consumers tend to misinterpret the strength of the science behind the claims—and not always in the way expected. ?Respondents attributed more certainty to claims with disclaimers than those without,? the study?s authors wrote. ?Respondents? perceptions of product health benefits were not diminished by conveying greater scientific uncertainty for a claim. In some cases conveying more scientific certainty for a claim actually led to more negative perceptions of product health benefits.?
That?s immaterial, said Emord. ?The court-ordered disclaimer is not predicated upon consumer perception. Under the First Amendment, if I tell you something that?s true, if you don?t understand it, it doesn?t matter ? it?s still protected speech.?
Researchers also found that respondents who had previously read information about a nutrient reacted more positively to an associated health claim. That?s one reason Emord characterizes the study as ?a big waste of tax dollars and a fiasco. All new science is largely misunderstood. It?s only by getting it out there ? that people come to understand what it means.?
Emord says the government should relinquish the role of writing disclaimers to the advertisers and marketing experts, and he rejects the idea that such a move would lead to spurious and sensationalized claims. ?The rule is truth,? he said. ?If the statement is true then that is [all that?s] necessary. The government should interfere only when there?s a preponderance of evidence that what you say is false.?
That?s Emord?s beef with the FTC. ?The way the FTC has it, you are presumed to have communicated a false statement unless you can prove otherwise.?
Emord said he expects the bill to be introduced by the end of the month. It has broad support, he said, with congressional and industry members on board. A petition also is circulating, urging further congressional support for the bill, and has already gathered 10,000 signatures. ?We certainly hit a chord out there,? he said. ?We intend on promoting the passage of this bill until it is passed.?
Go to www.emord.com to download the petition or to learn more.Correction: In the September 2005 issue of The Natural Foods Merchandiser, we made errors in the articles ?Whole grains promise better health? and ?Be alert to insomnia sales.? Spelt does contain gluten, and L-tryptophan is available without prescription.
Natural Foods Merchandiser volume XXVI/number 11/p. 10