Lawyer cites 'free speech' as basis for legal action on claims

Source: Hayley Brown, NutraIngredients

14th December 2009


Legal action to challenge the strict claims assessment process enshrined in the EU health claims Regulation could be pursued on the ground of free speech, according to a leading US lawyer.

European food and drink companies could “lift the yoke of censorship” if they could prove that the EU health claims Regulation denied them the right to freedom of expression, according to Jonathan Emord, from Emord & Associates – experts in US constitutional and administrative law.

In considering possible grounds for legal action to challenge the way the European Food Safety Authority (EFSA) was assessing health claims, Emord argued that food and drink companies should consider presenting EFSA with qualified claims for approval that overtly informed the public of the inconclusiveness of the science – similar to the qualified claims system operating in some other markets.

He was speaking at the NutraIngredients Health Claims 2010 conference in Brussels last Thursday.

If an application were still unsuccessful, said Emord, then it could be argued that the legislation’s failure to allow any claim of association, regardless of how qualified, violated the principle of proportionality.

This was because the act of censorship was beyond what was reasonably necessary to achieve the objectives of the legislation, said Emord, who has defeated the US Food and Drug Administration six times in federal court.  Five of these cases related to free speech.

“Nutrition science, like science in general, fails to fit neatly into the legal paradigm of the state censor,” claimed Emord.  "A go-no go approach to claim allowance, such as that employed by EFSA, fails to ensure public access to emerging science.”


Read the full article.

Update Dispatches from the NI Health Claims 2010 conference

Interview of Jonathan Emord

Attorney, Emord & Associates, P.C.

by Stephen Daniells, NutraIngredients 16th December 2009: "Are health claims suppressing free speech?"

 


ANH Comment

The ANH has often warned about the ‘freedom of speech’ issues with EU Health Claims Regulation, along with our other key concerns.


So it's very heartening to hear that leading US lawyer, Jonathan Emord agrees with our views about this legislation effectively gagging our freedom of speech, with a legal challenge possibly the only way out.  With 5 successful legal challenges on such issues with the US Food and Drug Administration (FDA), Jonathan Emord is possibly the best qualified to pass an opinion on this.

 

The EU Nutrition and Health Claims Regulation (NHCR) bans all health claims that are not specifically approved by the European Food Safety Authority (EFSA), and it has become quite clear during the latter part of this year, that EFSA approval of a health claim is very difficult to achieve, even when there is ample scientific evidence or emerging science for support.


We are grateful that Jonathan Emord has shown such insight into the problems inherent with the NHCR.  We are also relieved to see a lawyer of his calibre suggest that legal challenge is probably the only way forward.  After all, a bad law is a bad law, until it is changed.  It's no surprise to us that he also believes that EFSA’s ‘extreme paternalism’ poses a gigantic threat to the welfare of the European Community (EC).  How can it be right that people in the EC are no longer allowed to be informed, or to inform others about the relationship between food and health except in very few, specific instances, where causal relationships are established using ‘generally accepted science’?


Those who think this kind of regime could never find its way across the Atlantic, think again.  Codex Alimentarius is already a long way down the track of developing an international guideline on health claims modelled closely on the EU’s NHCR.  Then you have the Trilateral Cooperation Charter that aims to ban ‘misleading’ of ‘false’ health claims.  The methods it uses bear a chilling resemblance to the EU’s NHCR and Codex’s draft health claims guidelines. 


What does this mean?  It means quite simply, that the US has already put in place the machinery to do exactly what the Europeans are busy doing now!  Is this what you ordered from your politicians?

What can you do?

Aside from any legal challenge, we need to tell our elected representatives exactly how we feel about this infringement of our fundamental human rights.


To find out more about this process, and about who to write to, please click here to go to our ‘Get Involved’ page, and scroll down to the second section entitled: ‘Use your democratic right’.  Please also encourage others to do the same.


If you’re in the USA, please visit the American Association for Health Freedom (soon to become ANH-USA) 'Get Involved' page.


See also our July 2009 news item on EU Health Claims.



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