Nestle critical of selenium health claim ruling

By Shane Starling

- Last updated on GMT

Related tags: Health claims, First amendment to the united states constitution

Influential New York-based, food policy academic Marion Nestle says a recent court action ordering the FDA to remove lengthy disclaimers from selenium health claims will open the floodgates to misleading advertising.

On her ‘Food Politics’ blog, Nestle took issue with the Washington DC district court ruling that found the Food and Drug Administration was breaching Constitutional First Amendment free speech rights by adding lengthy disclaimers to qualified health claims linking selenium and cancer, respiratory and digestive benefits.

It ordered the FDA to amend the qualified health claims, something Nestle took issue with.

“In other words, supplement makers can say anything they want to about the benefits of their products – on the grounds of free commercial speech – whether or not science backs up the claim,”​ Nestle wrote.

“I am not a lawyer, but I thought intent mattered in legal cases. Surely, the intent of the founding fathers in creating the First Amendment was to protect the right of individual citizens to speak freely about their political and religious beliefs. Surely, their intent had nothing to do with protecting the rights of supplement, food, and drug corporations to claim benefits for unproven remedies…”

Free speech?

Responding to Nestle’s comments, the attorney who represented the plaintiffs in the case, Jonathan Emord, said the founding father’s had indeed intended the First Amendment principle of free speech to apply to all forms of communication – including commercial speech.

“Were the =founding fathers’ construct applied presently, there would be no federal power to interfere with the dissemination of this information,”​ Emord said.

“Under our contemporary First Amendment, and the First Amendment victory in the most recent case, the Court forbids an agency of the government from censoring nutrient-disease relationship claims that are backed by credible scientific evidence.

It compels FDA to rely on a less speech restrictive alternative, claim qualification—whereby the agency can explain the inconclusiveness of the evidence. The Court rightly rejected the notion favored by the commenter that speech should only be free if government deems it established conclusively. In a world of that sort, precious little could be said and no emerging science would ever reach the market, albeit almost every consumer decision made in the market depends on less than conclusive information.”

Emord also pointed out that the case related to qualified health claims and not the structure/function claims criticized in Nestle’s article.

One of the FDA’s disputed selenium claims read: “Two weak studies suggest that selenium intake may reduce the risk of prostate cancer. However, four stronger studies and three weak studies showed no reduction in risk. Based on these studies, FDA concludes that it is highly unlikely that selenium supplements reduce the risk of prostate cancer.”

NutraIngredients-USA coverage of the case can be found here.

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