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Archive for May, 2010
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Sunday, May 30th, 2010
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Sunday, May 30th, 2010
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Sunday, May 30th, 2010Does Wall Street “Reform” Threaten DSHEA Products?
Saturday, May 29th, 2010Natural Solutions Foundation
The Voice of Global Health Freedom™
www.HealthFreedomUSA.org
www.GlobalHealthFreedom.org
Does Wall Street “Reform” Threaten DSHEA Products?
As most health freedom advocates know, the two most powerful “consumer protection” Federal agencies, the FDA and the FTC are not friendly toward natural products, including dietary supplements protected by the Dietary Supplement Health and Education Act of 1994 (DSHEA). Before that law, such products were under severe attack, so much so that FTC sought in 1975 to use its rule making power to effectively ban such products. By 1980 the public outcry caused Congress to restrict that power, and then in 1994 DSHEA was adopted, protecting our right to truthful information about nutrition.
Thus when a number of astute “old hands” in the industry said the new Wall Street “reform” * bill had language hidden in it that could threaten natural products with new general rule making power for the FTC to abuse.
We’ve opposed this bill on that basis, with many thousands of messages to Congress demanding protection in the bill for DSHEA products.
See: http://salsa.democracyinaction.org/o/568/p/dia/action/public/?action_KEY=3142
Now along come some suggesting there is no problem here (somewhat the way some “old hands” thought John McCain’s justly maligned and now happily defunct “Dietary Supplement Safety” bill, S.3002 was no threat). We’re told there is no FTC empowerment language. We did our due diligence and researched the actual bill, S.3217. Go to www.Thomas.gov and put in the bill number, open up the .pdf version and search for the name “Federal Trade Commission.”
You’ll find what I found:
I’ve reviewed the 1522 page .pdf file of the version of the bill considered by the US Senate. The terms “Federal Trade Commission” occurs on 26 pages. Five pages discuss FTC authority.
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:s3217as.txt.pdf
Page 1375 contains the smoking gun:
“(C) CONTINUATION OF CERTAIN COMMISSION AUTHORITIES. —
Notwithstanding subparagraphs (A) and (B), the Federal Trade Commission shall continue to have authority to enforce, and issue rules with respect to—
(i) the Credit Repair Organizations Act (15 U.S.C. 1679 et seq.);
(ii) section 5 of the Federal Trade Commission Act (15 U.S.C. 45) * and
(iii) the Telemarketing and Consumer Fraud and Abuse Prevention Act (155 U.S.C. 6101 et seq.).”
Section 45 of Title 15 states:
“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful. ”
Notice how carefully the new law is stated, “continue to have authority to enforce, and issue rules…” — so it will “continue to have authority to enforce…” — notice carefully how it is worded, “…, and issue rules…” Thus “continue” applies to enforcing existing rules, dating from the 1970s or issued under limited laws passed by Congress (as they have done with regard to, for example, direct marketing) while “issue rules” is a new power which relates, tucked in section (ii) to the agency’s general Section 5 authority!
So FTC now has authority to enforce and issue rules with respect to “unfair or deceptive acts or practices in or affecting commerce…”
That is general authority to control all interstate commerce without further authorization from Congress!
I therefore conclude that the bill does threaten natural and DSHEA products.
One of my colleagues, Counsel Jim Turner of Swankin and Turner, Washington DC attorneys, puts it this way:
“My understanding is that the FTC was stripped of this authority in 1980 and this is an effort to restore that authority. It has broad implication for example if what I understand is true then this is the authority that FTC used in its effort to ban the words ‘organic, natural and health food’ from all commerce. It is not good if this is happening.”
Please continue to keep the pressure on Congress; we’ve revised the Action Item, telling our representatives that there is still time to get it right, in the conference committee that will shortly consider the bill.
http://salsa.democracyinaction.org/o/568/p/dia/action/public/?action_KEY=3142
We need your help to keep up this fight. Please donate here:
http://www.healthfreedomusa.org/?page_id=189
Yours in Liberty,
Ralph Fucetola JD
Natural Solutions Foundation
Trustee and Counsel
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* In this case “reform” means a multi-trillion anti-market bailout and a slap on the wrist…
Dr. Ron Paul Questions Holistic Ear Candle Ban
Friday, May 28th, 2010Natural Solutions Foundation
www.HealthFreedomUSA.org
Natural Solutions Foundation is one of the Plaintiffs in the case of Holistic Candlers and Consumers Association et al v FDA et al. – http://www.healthfreedomusa.org/?p=5210.
During February 2010 the Food and Drug Administration, with an excess of zeal, ordered the 15 known Ear Candles companies in the United States to cease all activities, since the agency now deems Ear Candles “medical devices” without hearing from the Public, findings of fact, Significant Scientific Agreement or other substantiating or supporting reason, evidence of science. Holistic ar candles have been used for decades if not centuries, for relaxation and general wellness for decades. Americans have used them prior to 1976, when the agency was given power over “medical devices.” Ear Candles are not medical devices. FDA says they have “no” medical uses and therefore could never even be approved as “medical devices.” They are a traditional, natural product that promotes relaxation and the health benefits of relaxation.
We therefore deplore the FDA’s action, which, in effect, censors what Americans can say commercially about Holistic Ear Candling. This is wrong and violates the Constitution as interpreted by the Supreme Court.
We cite the case of Thompson v. Western States Medical Center (535 U.S. 357, 2002). This case concerns a clause in the Food, Drug and Cosmetics Act that allows pharmacists to “compound” medications for specific prescriptions without safety testing and FDA prior approval, but originally forbade pharmacists from advertising the specific compounds they make. The Supreme Court held that the restriction on Commercial Speech was unconstitutional. Some of the language used in Justice O’Connor’s Majority Decision that sets the tone is as follows:
“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 … a warning that the [product] had not undergone FDA testing and that its risks were unknown.”
The law already forbids the making of medical claims with regard to products such as Ear Candles. Therefore removing the product from the market is an unnecessary interference with the choices of adults regarding their own private activities.
We salute Ron Paul’s letter to the FDA dated May 25, 2010 demanding answers from the FDA as to why the agency has taken this unconstitutional action.
This is why we hold that “Health Freedom is Our First Freedom” because without it, our other liberties may not be effectively exercised!
Dr Paul’s letter reads in part: “I am writing regarding the numerous warning letters … sent to the manufacturers of ear candles suggesting that ear candles are a medical device requiring premarket applications… the result would be to deny some people access to the product… I have been made aware that there is a dispute over whether ear candles meet the definition of a medical device. Furthermore, I am aware that there are claims that, even if ear candles meet the statutory definition of a medical device, they likely fall within the exemptions granted Class I generic devices. Thus, it is questionable whether the FDA’s letters … reflect a proper classification of ear candles… I have also been informed that there are very few adverse events reports… It seems that concerns about the safe use of ear candles could be addressed by requiring the distributors of ear candles to include risk warnings and proper use instructions…”
Thank you Dr. Paul for once again defending the rights of the people against the abusive power of the federal agencies!
Also posted at Campaign for Liberty: http://www.campaignforliberty.com/blog.php?view=35823