Health Related Claims, The Market for Information, And the First Amendment (Symposium on Commercial Speech and Public Health)
Health Matrix 2011, Wntr, 21, 1
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Food and drug law is replete with restrictions on truthful commercial speech. Drug manufacturers must confine claims about the safety and efficacy of their products to those the Food and Drug Administration (FDA) has approved for labeling. Food manufacturers may discuss the relationship between diet and disease if the FDA has determined that there is "significant scientific agreement" that the claims are true. Pursuant to FDA guidance, manufacturers may also make more limited claims to consumers that there is evidence of a diet-disease relationship, but that such evidence does not rise to the requisite level of "significant scientific agreement" regarding the truth of the claim. Those who say too much, however, risk an FDA finding that they have made a "drug" claim, and are therefore illegally selling the food as an unapproved new drug. Other producers, who would like to inform consumers of a diet-health relationship, are often prohibited from doing so because their products have too much of some condemned nutrient. For example, the food producer cannot explain why the amount of saturated fat is significant, from a health perspective, in foods low in saturated fat (as defined by the FDA) but high in total fat content. Therefore, the high total fat content of the food prohibits this producer from making a health claim (e.g., "heart healthy--low in saturated fat"). Most of these restrictions have their roots in regulatory approaches that were developed in an era when the Supreme Court held that commercial speech was not protected under the First Amendment at all. (1) Over time, the commercial speech doctrine developed and increasingly protected truthful speech from governmental restrictions that were founded on the notion that it would be better for consumers to remain ignorant. The FDA has tended to assume, however, that the doctrine does not really apply to health and safety claims.
- 2,99 €
- Category: Health & Fitness
- Published: 01 January 2011
- Publisher: Case Western Reserve University School of Law
- Print Length: 39 Pages
- Language: English