Nutrition and Public Interest (Part II)
Contents in this issue:
- “Nutrition and Public Interest (Part II),” by Kirkpatrick W. Dilling.
The following is a transcription of the November 1965 issue of Dr. Royal Lee’s Applied Trophology newsletter, originally published by Standard Process Laboratories.
Nutrition and Public Interest (Part II)
Kirkpatrick W. Dilling
This article begins in Part I (October 1965) and concludes in Part III (December 1965).
Dietary supplement products distributed by the food supplement industry, generally, serve a vital public demand in several important public health areas:
- By minimizing, through supplementation, specific dietary deficiencies.
- By providing, through supplementation, more than minimal or “borderline” intake of known vitally needed nutrients.
- By enabling a given individual, through supplementation with ascertained amounts of vital nutrients, to provide “nutritional insurance” against an inadequate long-term dietary intake, thus providing a margin of health safety to the person involved.
We have come a long way since the days of the Greeks, before the birth of Christ, when the “science” of that day believed there were only four elements: earth, air, fire, and water; four qualities: dry, cold, hot, and wet; and four humors, or liquids, that comprised the body: blood, phlegm, black bile, and yellow bile. However, even in 1965, the science of nutrition is in its infancy, and the best key to good nutrition is still a steady supply of the various nutrients known to be essential for health.
These nutrients are supplied in ascertained, pure, nutritious, and supplementary quantity by the products of the U.S. food supplement industry. These foods are, and have been, making a significant contribution to the general health and welfare through improving millions of individual nutritional patterns, with all that this contribution implies in terms of National health.
Are these individuals benefited by dietary supplementation? Long-time experience in the American marketplace demonstrates that the answer is “Yes,” since statistics gathered by the Industry reveal, in many thousands of instances, the beneficial effects received by purchasers of food supplement products.
Discrimination Against the Industry
In view of the circumstances outlined above, one would expect that the U.S. Food and Drug Administration, an agency charged with impartial and nondiscriminatory administration of Federal food and drug laws, would favor all measures for improving the nutritional pattern of the American public. However, due to policies adopted by certain of its officials, the vast power of the U.S. Government is too often employed to discriminate against the industry.
Recently, Honorable Sidney Weissenberg, a high FDA official, testified that it is the policy of his agency that all dietary supplementation is superfluous and unneeded. Although this policy grossly transgresses the facts of the matter, the agency, nevertheless, carries on a discriminatory program apparently designed to throttle the food supplement industry.
Following are some recent examples of discriminatory action:
Suppressing freedom of communication. Despite the inalienable right of every citizen to freedom of speech and communication, as guaranteed by the First Amendment to the U.S. Constitution, employees of the agency have repeatedly attempted to “censor” printed material offending the policy noted, by designating it as “labeling” subject to federal control.
Your Congressional colleague, Honorable David King of Utah, recently addressed a convocation of the National Health Federation, stating as to these current FDA activities:
“In my opinion, this organization has gone further than was necessary to carry out the intent of the law in employing legal sanctions to suppress the free and proper exchange of information in matters of health…Should a federal agency have the power, through indirection, to censor a book for reasons of the heterodoxy of its content, where it is admitted that the book is neither harmful to human health, nor immoral, libelous, nor misleading in the sale of a specific brand product? It is difficult for me to see how any person familiar with the great American tradition of the free marketplace of ideas could answer this question in the affirmative…The keystone in the great arc of constitutional democracy is the concept that people must be protected, not only in their right to be right, but in their right to be wrong. To put it bluntly, if I want to choose a particular doctor, or a particular nutritional regime, why should I not have that right?”
An FDA attempt to censor printed matter was struck down in November 1964 by a U.S. Court of Appeals, wherein the agency had sought to seize two books extolling vinegar and honey, on the basis that the publications were “labeling” for certain honey and vinegar products. The Court held the seizure to be improper and not within the scope of FDA legal powers.
Nevertheless, various officials of the agency continue to attempt barring literature not in accordance with their views, and this is certainly a legislative area within which Congress should act, in order to clarify and confirm Constitutional rights now too often violated by bureaucratic action.
Trial by publicity. A hearing in a recent federal court matter resulted in the issuance of a limited preliminary injunction regarding a product under attack. A trial on the merits of the case is still far away. And yet, in advance of any hearing considering the merits of the controversy, two lengthy press releases were released by the agency, widely publicized in the press, and wherein it is virtually assumed in advance of any trial what the adjudication of the court will be. This is but one example of an agency practice that was excoriated in 1962 by a select committee appointed by the U.S. Secretary of Health, Education, and Welfare (designated to study the FDA) as unfair “trial by publicity,” but which practice continues, nevertheless.
Concerning “trial by publicity,” the President of the American Bar Association, Lewis F. Powell Jr., recently stated:
“No responsible person wishes to ‘muzzle’ the media or to limit free press as guaranteed by the First Amendment. But the equally cherished right of fair trial is also guaranteed by the Constitution, and there are times when this is gravely prejudiced by information published prior to or during trial.”
Congressman David King has also recently stated, regarding this matter:
“There is another area in which the FDA, in my opinion, has used its enormous powers excessively, and that is the area of trial by adverse publicity. Many cases have come to my attention where the FDA has issued extremely damaging press releases preparatory to filing an action to repress the use of certain food substances, or certain food labels. In some cases, the defendant, or libelant, was later completely exonerated, but only after the adverse publicity had completely wrecked him. The circumstances in some of these cases strongly suggest that the FDA has used its power of press release, not just to inform or warn the public, but to suppress an unfriendly, or unacceptable, point of view.”
It is strongly recommended that the Congress should enact legislation whereby “trial by publicity” is banned.
Public partiality and discrimination. During the past year, the FDA has sponsored a large volume of publicity designed to convince the uninformed consumer that a vague generality termed the “average American diet” automatically insures that everyone receives good nutrition, no matter what foods are included in the individual diet. The assertion has also been made again and again that advocacy of dietary supplementation is merely “quackery” or “food faddism,” and therefore reprehensible. Notably absent has been any FDA publicity deploring extensive use of cigarettes, soft drinks, alcoholic beverages, candy, and other items that make no contribution to the national health, and which in fact are often harmful.
Regarding the fallacy of the “average diet” concept, Dr. John J. Miller, the noted nutritional expert and scientist, recently observed:
“The ‘average American diet’ we hear and read so much about is after all merely a fiction of the imagination. In presuming to give mathematical expression to a hodgepodge of data on national food production, consumer food-flavor preferences and biological values, this notion results not only in confusing the public as to proper guidance in food selection, i.e. between political authorities on the one hand and medical recommendations on the other—but also misleads the innocent purchaser into thinking that ‘all will be well’ with the family if she follows the crowd in her dietary program.
“The slogan—‘Adequacy of the Average American Diet’—can contribute immeasurably to the ill health of the Nation by inhibiting the natural impulse of the consumer to question generally publicized nutritional values as far as individual needs are concerned.”
From time to time, FDA sponsors various “anti-quackery” meetings. Representatives of the food supplement industry are regularly excluded from participation in these gatherings, and they become forums for Government-sponsored attacks on the industry.
It is strongly recommended that this Committee adopt measures insuring that appropriations for FDA shall not be employed for the discriminatory purposes noted.
Lack of cooperation with industry. A small food supplement distributor (not a member of the Association) was the subject of five visits by FDA inspectors in less than a year. The distributor opened his files and records to the inspectors and otherwise cooperated in every way. On each occasion he asked whether or not any illegal or improper practice had been observed. He was unable to obtain any information. This man, a reputable and respected citizen in his community, was understandably confused when he received a preliminary charge of criminal violation of Federal law, necessitating that he hire counsel and travel hundreds of miles for a hearing before an FDA administrative officer.
In another instance, a food supplement distributor was threatened with arrest when he declined to permit an inspector to search his automobile, the inspector having no search warrant or other legal basis for his demand.
Honorable George P. Larrick, FDA Commissioner, and other officials, gave repeatedly enunciated that the Agency has an “open door” policy regarding industry, and that regulated individuals are always helped and advised so violations of law may be avoided. However, this policy is not followed in numerous instances involving the food supplement industry.
The Second Citizens Advisory Committee report on the Food and Drug Administration, rendered in the latter part of 1962 to the U.S. Secretary of Health, Education and Welfare, stated:
“The Committee wishes to express its particular concern with the current status of FDA-industry relationships. In general, these are found not to be based upon common understanding, trust, and respect, but rather upon fear, questioning of basic motives, and lack of opportunity for discussion before drastic action is taken on violations, many of them minor and not related to health hazards.”
Despite the Committee’s observations, the situation remains substantially unaltered. It is recommended that the Congress should enact suitable legislation to insure improved FDA cooperation with regulated persons and concerns.
(Continued from Part I in the October 1965 issue of Applied Trophology. For Part III, see our December 1965 issue.)
