Saturday, August 1, 2009

Dr. Ron Paul Introduces Health Freedom Bills in Congress

This just in... Dr. Ron Paul, health freedom's friend in Congress, introduced two important bills yesterday that, if passed, would rein in the excessive interference in advanced health products by the FDA and FTC.

You can support these bills here:

Here is the Life Extension Foundation's description of the bills:

HR 3395: The Health Freedom Act. This bill removes FDA’s power of prior restraint over all nutrient-disease relationship claims. Under the bill, the FDA may not prohibit any statement concerning a nutrient affecting a disease (including treatment effects) from being made in the market and may only act against a statement once made if it possesses clear and convincing evidence that the statement is false. Presently the FDA blocks an enormous quantity of truthful information concerning the effects of nutrients and foods on disease from reaching consumers. That barrier is removed by the Health Freedom Act, but the Act preserves the power of the government to prosecute those who communicate falsehood. The essential purpose of the First Amendment is to disarm the federal government of the power to impose a prior restraint on speech. The FDA has imposed a prior restraint for decades to the health detriment of the public. Passage of the Health Freedom Act will restore constitutional governance by reasserting the supremacy of the First Amendment over the Food and Drug Administration.

HR 3394: The Health Information Protection Act. This bill prevents the Federal Trade Commission from taking action against any advertiser that communicates a health benefit for a product unless the FTC first establishes based on clear and convincing evidence that the statement made is false and that its communication causes harm to the public. Presently, the FTC reverses the Fifth Amendment burden of proof on the government when it charges advertisers with deceptive advertising and then demands that they prove their speech true based on contemporaneously held documentation or be deemed to have advertised deceptively. The Fifth Amendment requires that FTC bear the burden of proving advertising deceptive. It may not constitutionally shift the burden to the advertiser to prove its statements not deceptive. The First Amendment requires that FTC not act against speech unless the speech is probably false. It may not constitutionally accuse a party of false advertising yet lack proof that the advertising is false and condemn advertising based on an absence of documentation concerning the truth of the statement rather than the presence of evidence establishing the falsity of the statement.

These bills go to the heart of the issue of valid health claims for nutrient products: how do companies substantiate the claims they are making. Essentially the bills apply Constitutional principles to the making of claims, which are a type of speech, and are therefore protected from excessive bureaurcratic burden.

In this context it is useful to see what then Justice Sandra Day O'Connor wrote for the Supreme Court majority in the leading health claim free speech case, Thompson v. Western States Medical Center - 01-344, decided on April 29, 2002 - 535 U.S. 357 -

"If the First Amendment means anything, it means that regulating speech must be a last - not first - resort."

"We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information."

"Even if the Government did argue that it had an interest in preventing misleading advertisements, this interest could be satisfied by the far less restrictive alternative of requiring each be labeled with a warning that the [product] had not undergone FDA testing and that its risks were unknown."

The basic rule, announced by the case, to determine constitutionally permitted government restrictions on Commercial Speech (speech that makes or is about an offer for a transaction) is a Two Prong Test: the first prong is to ask two questions: (1) is the speech in question about unlawful activity and (2) is the speech misleading. If "no" to both, the speech is entitled to protection unless the Government can carry its burden and prove (1) the governmental interest involved is "substantial", (2) the regulation must "directly advance" the governmental interest and (3) the regulation of Commercial Speech cannot be "more extensive than is necessary to serve that interest" (quoting Central Hudson v Public Service, 447 US 557, at 566).

Dr. Paul' s bills make it clear that the government has the burden of proof if it seeks to restrict what marketers say about their health related products. In this way, his bills preserve the Constitutional protections for Commercial Speech.

You can support these bills here:

And a final thought: “Liberty is to the collective body what health is to every individual body. Without health no pleasure can be tasted by man; without liberty, no happiness can be enjoyed by society.” –Thomas Jefferson

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