Today, TechFreedom joined the Alliance for Natural Health in an amicus brief asking the D.C. Circuit to strike down an FTC order requiring POM Wonderful to further substantiate health benefits claims about its pomegranate juice with the kind of expensive randomized clinical trials (RCTs) performed for prescription drugs.
“POM spent over $30 million researching the health benefits of its food products long known to provide substantial health benefits, but the FTC has demanded randomized clinical trials, which might cost $600 million or more. This impossibly expensive requirement will effectively ban all disease-related claims for foods and dietary supplements,” said Jonathan W. Emord, counsel for ANH and a TechFreedom Senior Adjunct Fellow. “This unconstitutional prior restraint on free speech will restrict public access to all manner of emerging science on the role of nutrients in reducing disease risk. Unless this decision is overturned, America will enter a nutrition science dark age: on top of overly burdensome FDA regulation, the FTC will cause consumers to get even less information about the foods they eat. This means poorer dietary choices and more age-related diseases.”
“The FTC has run roughshod over the First Amendment,” added Emord, citing the D.C. Circuit’s 1999 decision in Pearson v. Shalala, where the court struck down a similar FDA requirement and required the FDA to allow health benefit claims if made with appropriate qualifications alerting the public to the lack of conclusiveness in the science. “The First Amendment demands more disclosure, not less. The FTC should allow claims supported by reasonable scientific evidence if accompanied by clear qualifications alerting the public to the lack of conclusiveness in the science.”
“The way the FTC imposed this requirement also violates basic constitutional principles of due process,” said TechFreedom President Berin Szoka. “At least the FDA allowed an opportunity for public comment. The FTC has sidestepped such debate about the science and the practical consequences of its rule. This is the latest example of the FTC pretending that it does not have rulemaking power simply because it finds its rulemaking process too cumbersome. The 1975 Magnuson-Moss Act imposed additional procedural safeguards on FTC rulemaking precisely because the FTC had wildly abused the normal APA rulemaking process. The FTC continued to abuse its sweeping unfairness and deception authority even afterwards, causing a Democratic Congress to briefly shutter the rogue agency. Today, the FTC is reverting to its old habits. If the courts won’t rein in the FTC, Congress must.”
TechFreedom raised similar concerns about FTC process in an amicus brief asking a federal district court to dismiss the FTC’s data security enforcement action against Wyndham hotels as failing to establish a violation of the FTC Act. Emord & Associates explain the POM case in more detail here.