PART 2 of 2
Investigating Journalist Jon Rappoport
November 8, 2010
An Exclusive Interview With Attorney Jonathan Emord
The present FDA admires the European example of broad censorship and restrictions on supplement access and is aggressively ridding from the American market claims and products. We need to replace that administration and put into law new constraints on the exercise of government power. I have written for Congressman Ron Paul a bill that would strip FDA of its prior restraint on claims, leaving the federal government limited to acting against claims it can prove with clear and convincing evidence to be false. That bill, the Health Freedom Act, needs public support and would, if passed, usher in a new era of speech freedom for claims in the United States.
RAPPOPORT: During the debate and run-up to the passage of ObamaCare, the national health insurance plan, I heard very little concern expressed in the health freedom community about the future implications of this bill. It’s obvious to me that, with control being vested in the Department of Health and Human Services, we could eventually see the day when alternative health care and nutrition are edged out further and further from permitted treatments. And citizens would be required to accept conventional medical treatments, whether they want them or not.
Along a similar line, I see very little evidence, these days, of action being taken by health freedom groups and nutritional companies to keep health freedom alive. Certainly, we see nothing like the enormous campaign launched in the early 1990s, when Congress received millions of letters protesting the actions of the FDA to limit our access to supplements, and celebrities came out of the woodwork to support health freedom.
What am I missing? Is some back-door deal in place now? Have nutritional companies been given assurances that, if they keep their heads down and their mouths shut, they’ll be allowed to do business as usual?
I’m at a loss to explain the eerie silence from groups that should be continuing to fight VERY VISIBLY for our freedom in this area. I sense a soft attitude.
I was very active in the health freedom movement of the early 90s. My approach was to go after the FDA for their ongoing crimes, to attack. At the time, some people told me to dial it back, we were going to get a good bill passed in Congress, and aggressive actions could injure our cause. Is that the prevailing mood now? Is something on the table we don’t know about? A new bill?
EMORD: There has been a recurrent pattern by supplement trade groups and certain leading companies in the industry (epitomized by the industry move to draft and advocate FDA adoption of GMP rules giving FDA broad discretion) to engage in self-flagellation. In its nascent, more competitive years, the industry more stridently opposed FDA regulation. The movement of consumers away from specialty supplement brands towards less costly generic varieties combined with bad economic times contributed to consolidation of the supplement market, and certain industry leaders have for the last several years moved away from robust contest with FDA to compromise with the agency. There is an economic motive for this, to be sure. Large [supplement] industry players believe they benefit from greater FDA regulation because it creates costly barriers to entry that keep out smaller competitors.
There is also a mistaken view promoted by certain industry trade associations that if the industry confesses fault to FDA and Congress, even when no fault exists, and professes a keen interest in ridding itself of bad practices, even when those practices are unrepresentative of the industry, it will curry favor with the powers that be. Instead, it has provided those powers with more ammunition to use against the industry, compounding the industry’s problems and creating a major public relations problem.
The fact is dietary supplements with few exceptions are the safest ingestible products, far safer than foods and far safer than drugs. That is a remarkable fact that one would think the industry would recite at every turn. Instead, certain trade associations and industry leaders voice grave concerns about supplement safety and agree to greater federal regulation on the notion that greater regulation is either inevitable or will favor the market position of the leading companies. To listen to what Congressmen Waxman or Dingell have to say, you would swear that supplements were fissile materials. It is the rare exception rather than the rule that a dietary supplement causes harm.
By buying into the self-flagellation argument (the argument of supplement opponents that there is something inherently wrong with the market that necessitates extraordinary new regulation lest we all succumb), the industry is inviting its own demise.
Industry leaders who buy into this on the notion that it will reduce competition and shore up their market shares are in fact deluded, however, because, in the end, the FDA is the drug industry’s, not the supplement industry’s, to control. In other words, FDA will be pleased to expand its regulatory power over the supplement industry but not for the benefit of the supplement industry’s leaders. Rather, FDA will invariably use greater regulatory power over the supplement industry to aid its favored regulatee, the drug industry, not to shore up the market share of large supplement companies. The drug industry, not the supplement industry, holds almost all the cards at FDA and in Congress. The supplement industry has relatively little clout by comparison.
Instead of engaging in self-flagellation, the industry ought to refute false representations against supplement safety and efficacy and promote public awareness of the many benefits supplements bring to consumers. Supplements are rarely the cause of human injury. The science concerning their health enhancing effects abounds and grows weekly. The potential for nutrients to reduce the risk of, prevent, and even treat disease is profound. Science is unraveling truths about human biochemistry that support the conclusion that our lifestyle choices very much affect our disease risks and that healthful living in reliance on organic foods, above levels of certain key nutrients, reduction in stress, and faith and hope have a profound impact on our health, our quality of life, and our longevity.
Rather than engage in self-flagellation, the industry should celebrate its strengths, advertise them continually to the public and the government, and act to defend on grounds of principle the freedom to market and sell safe and potentially life-saving and health enhancing supplements.
RAPPOPORT: I have searched the most popular conservative radio and television shows and websites and blogs—in other words, the places where one would expect to find a defense of our freedom to choose whatever means we want to, to maintain and improve our health—and I come up with a big fat zero. Why do you think the silence there on this issue is deafening?
EMORD: There may be some truth to the notion that because the media are financed in no small measure from drug ads, there is a natural economic interest in avoiding communication that attacks drug safety and efficacy. The FDA and the FTC have not been shy about informing media of regulatory risks associated with supplement advertising, thus creating a general chilling effect on the interest of media to present supplement advertising and discuss supplement health effects. Finally, as with many areas of emerging science, there is still widespread ignorance in the media on the association between nutrients and disease. That ignorance is forged into prejudice when negative press on supplement-disease associations is widely disseminated, but positive press on those associations is more often than not ignored or given short shrift.
RAPPOPORT: This past summer, Congress took up a food safety bill (S.510). What’s its present status? Does its wording really suggest we may be subject to Codex regulations vis-à-vis the sale of nutritional supplements? What are the shortcomings of the bill?
EMORD: This bill is a significant threat to the supplement industry. It contains a provision that permits FDA to charge the hourly cost of its inspections of [nutritional-supplement] establishments if the agency finds a violation warranting a re-inspection. That creates an incentive for FDA to find fault on first inspections and to do re-inspections as a revenue raiser. The bill also includes a provision that encourages FDA to evaluate harmonization between domestic and foreign regulation. That invites the agency to construe its regulations to effect a change in them favoring the EU model. At a time when the FDA is in great disrepute for abusing its powers (approving unsafe drugs, failing to force the withdrawal of unsafe drugs form the market, and censoring health information concerning supplements), the Congress is about to entrust the agency with yet more vast new regulatory powers. That is a big mistake. Congress should be moving rapidly in the other direction, taking away power from this corrupt agency. The problem is that Congress, too, is quite corrupt. Senator Harry Reid said that he would not move the bill forward in the Senate until after the election. The election is likely to result in Republican control of the House and either Republican control of the Senate or a loss of Democratic dominance in the Senate. If that happens, S. 510 could become a casualty of an angry electorate desirous of stopping the regulatory train before it leaves the station.
RAPPOPORT: In a radio interview we did some months ago, you made a number of points that need much wider dissemination. I’d like you to expand on two of those points. First, you said we have a federal government that, actually and disastrously, is run by and through its regulatory agencies, whose employees stay on during one administration after another. And two, despite your string of unprecedented victories in court against the FDA, you have the sense that the Agency is quite prepared to ignore the court rulings limiting its illegal intrusions into our affairs—in fact, the Agency fully intends to carry on without paying one iota of attention to those court rulings…making it, in my eyes, a rogue Agency.
EMORD: In my book, The Rise of Tyranny, I explain how our federal government has been transformed from a limited federal republic into a bureaucratic oligarchy since the 1930s. Under our Constitution, Congress is vested with the power to make laws. We have a separation of powers that prevents any one branch from exercising combined legislative, executive, and judicial powers, and we have a non-delegation doctrine, that forbids those branches vested with those powers from delegating them to other entities. In the 1930’s, the Supreme Court at first held efforts by President Roosevelt to delegate governing power to bureaucratic agencies unconstitutional. In response, President Roosevelt advocated the passage of legislation that would have packed the court, adding a justice for every one sitting who had reached 70 and one-half years, thus altering the composition of the Court to receive jurists who would favor the New Deal agencies. The bill was not passed but caused what the media of the day referred to as “the switch in time that saved nine.” In 5 to 4 majority decisions, the Court switched from defending the separation of powers and the non-delegation doctrines to abandoning them.
Since that time, despite the creation of over 183 federal agencies, many with these combined powers, there has not been a single instance in which the Supreme Court has held the delegation of governing power outside the [three basic] constitutional branches to be a violation of the non-delegation doctrine. As a result, today over ninety percent of all federal law is not the product of our elected representatives but regulation promulgated by unelected heads of the bureaucratic agencies. We founded this country on the notion that no American should be taxed without being represented, and yet today we are taxed and those who create almost all laws governing us are unelected. James Madison, Thomas Jefferson, John Adams, Alexander Hamilton, and George Washington each stated that if ever our country were to reach a point where legislative, executive, and judicial powers were combined in single hands that would be the end of liberty and the birth of tyranny. Sadly, I believe we are there. A bill I wrote for Ron Paul would restore constitutional governance by preventing any regulation from having the force of law until it was passed into law by Congress in the way the Constitution requires. That bill, the Congressional Responsibility and Accountability Act, is pending in Congress.
RAPPOPORT: A more general question: From your experience and training as a constitutional lawyer, what is your view on what the Constitution put in place, through word and intent, regarding individual freedom? Constitutionally, what is the meaning and range of freedom?
EMORD: Ours is designedly a Constitution of liberty. It is remarkably unique. The Declaration of Independence perhaps best sums up the legal creed that underlies the Constitution. Just governments are instituted among men to protect the rights of the governed. Just governments are derived from the consent of the governed. When governments become destructive of those rights, it is the duty of the people to alter or abolish them so as to restore governance in protection of, rather than derogation of, those rights.
The Constitution is an extraordinary document precisely because it is a written limit on the power of the state. Before it, no government on earth had such written limits. Under it, no power rightfully exists in the state except that which is expressly given to it by the instrument. It enumerates the powers of Congress; it separates legislative, executive, and judicial powers; it makes law-making the province of an elected branch but only for enumerated purposes; it makes war declaration the province of that same branch, albeit war prosecution the province of the executive. It makes treaty negotiation the province of the executive, but reserves consent to the Senate for treaties negotiated. It makes the individual sovereign by limiting federal powers, preserving state powers as a check on the federal ones, and forbids in the Bill of Rights government from acting beyond the powers enumerated in the Constitution against the reserved rights of the states and the people. Those reserved rights create for us a universe of freedom that is meant to be extremely broad. Its scope is perhaps best conveyed in Thomas Jefferson’s definition of liberty:
“Of liberty I would say that in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the right of an individual.”
That ideal, that scope of freedom, we do not presently have because the plain and intended meaning of the Constitution is now largely dishonored.
RAPPOPORT: What is your view of the so-called “living, evolving Constitution” promoted by many, many judges?
I have given much thought to this. My thinking is reflected in my books Freedom, Technology, and the First Amendment and Global Censorship of Health Information.
In brief, the Constitution’s words spring from underlying principles. Those principles are static. Yet, as we progress in science, technology, and knowledge, we are confronted with new facts. That environment, the life of the Republic, is dynamic. The Constitution permits amendment through a precise process prescribed in Article V. Its meaning, i.e., the principles designedly protected by its words, may not be reasoned out of the document or altered, except by amendment in the way the document designates. Consequently, those principles must be preserved in the face of the evolution of our Republic, but that is not to say facts arising from that evolution, because not previously known, justify departure from first principles. To the contrary, the aim must be to ensure that first principles are upheld despite the evolution. So, for example, while the electronic media was not known to the Founders, it is nevertheless media and therefore should be entitled to the same full First Amendment protections afforded the print media. We thus preserve freedom for the message (the aim of the First Amendment) regardless of the medium.
RAPPOPORT: When a pharmaceutical company is found guilty of pushing a drug on the public it knew was dangerous; and when the drug has been shown to have caused considerable injury and death; when law suits for grievous harm result in huge money judgments; why aren’t persons in that company prosecuted criminally and thrown in prison for long sentences? What keeps that from happening?
EMORD: You raise an excellent question. I believe those who knowingly introduce into the market substances that are likely to cause mortal injury, not just those in industry but also those in government, should be prosecuted criminally for homicide or, at a minimum, criminal negligence.
RAPPOPORT: On what Constitutional basis does the federal government pour billons of dollars into the National Institutes of Health, a federal agency, for ongoing medical research?
EMORD: None. Ideally, the federal government should be limited to Justice, State, Treasury and Defense. The health and safety power was meant to be a state power, and I think we in this and many other respects have exceeded the intended bounds of the federal government.
RAPPOPORT: Could you comment on the legality/illegality of ways in which the government partners with conventional medicine, making it the preferred method of health treatment in all areas.
EMORD: On the state level, medical boards engage in anti-competitive regulation, largely designed to deem it a failure of the standard of care for a physician to innovate in medicine and create a market for the innovation that would harm the economic interests of those who practice conventionally. On the federal level, Medicare establishes treatment orthodoxies through its coverage determinations that bleed into all areas of care and invite charges of abuse for those physicians who would provide a different degree, nature, or quality of treatment than is accepted by Medicare. That condition is destined to worsen as the Health Reform law causes care for all Americans to be federally scrutinized and subject to a Medicare-type system of second-guessing of physician services. The FDA contributes to this regime because nothing can be used for treatment of disease in the United States unless it has been approved by the FDA as a drug. Because it costs on average about $600 million to get a drug approved in the United States, tens of thousands of potential therapeutic agents are never legally available to treat patients and, thus, secure a monopoly for drug companies in the treatment of Americans. FDA is an example of industry capture. The drug industry controls the agency. The drug industry also largely dictates the content of medical education and the prescription practices of physicians. Its influence is pervasive and reinforces allopathic medicine at every turn.
RAPPOPORT: What do you think our best strategy is, here in America, to head off what the FDA is going to do?
EMORD: In my book The Rise of Tyranny I provide a detailed explanation of the changes needed to restore the Framer’s Republic. In short, I urge people to vote out of office those who have not supported deregulation and to press members of Congress to support two of the bills I have written for Congressman Ron Paul—the Congressional Responsibility and Accountability Act and the Health Freedom Act. The former would prevent any regulatory agency from enforcing any regulation it promulgated until that regulation is passed into law by Congress in the way in which the Constitution designates. This would prevent the agencies from exercising unchecked power and would restore the law-making function to Congress, preventing a lot of abusive regulation from ever being enforced.
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The latter bill would disarm FDA of any power to require advance review of claims for supplements. That system of prior restraint violates the First Amendment and should be dismantled. Those who would defraud the public by falsely advertising their products should be prosecuted after the fact but those who wish to tell the truth should not be required to convince the FDA before they are allowed to speak. There are many other reforms we need to institute, including removing from FDA the drug approval power and vesting in universities, through a blinded system, drug reviews so that science, rather than politics and favoritism, determines the outcome of drug evaluations. For part one click below.
Click here for part -----> 1,
� 2010 Jon Rappoport - All Rights Reserved
Jon Rappoport has worked as an investigative reporter for 30 years. Nominated for a Pulitzer Prize early in his career, Jon has published articles on medical fraud, politics, alternative health, and sports in LA Weekly, CBS Healthwatch, Spin, Stern, and other magazines and newspapers in the US and Europe.
He is the is author of several books, including The Secret Behind Secret Societies and The Magic Agent (a novel).
Jon is the author of a new course for home schoolers, LOGIC AND ANALYSIS.
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