THE THREAT TO HEALTH FREEDOM NOW
AN EXCLUSIVE INTERVIEW WITH ATTORNEY JONATHAN EMORD
By Jon Rappoport
www.nomorefakenews.com
qjrconsulting@gmail.com
October 25, 2010.
As a medical investigative reporter for 28 years, I've seen public
interest in health freedom come and go. Right now, in 2010, it is at a
low point.
In the early 1990s, there was a tremendous fervor in America.
Millions of people, perceiving a threat from the federal government,
realized they could be cut off from the right to improve their health
according to their own wishes, judgments, and decisions.
In practical terms, health freedom has come to mean: the right to
have access to the widest possible range of nutritional supplements,
health practitioners, and treatments--with no government obstruction.
Back in 1993, millions of Americans believed in that principle, and
sent letters to Congress. Rallies were held. Celebrities appeared and
supported traditional American liberty.
The final blow was struck with the passage of the Dietary Supplement
Health Act of 1994 (DSHEA). It appeared to promise the results citizens
were looking for. The FDA would not be permitted to limit access to
the full range of nutritional supplements.
Then the furor died down and people went back to their lives. The
internet grew into a giant. Millions of pages discussing health issues
appeared. More freedom. More access.
But there has been an overall dampening of that spirit of the early 90s. Many people believe the major battle has been won.
To examine whether this is the case, and whether the DSHEA Law is
actually keeping Americans safe, I interviewed a widely revered lawyer,
Jonathan Emord.
Emord is one of the nation's leading free speech attorneys. He has
defeated the Food and Drug Administration a remarkable seven times in
federal court, more times than any other attorney in American history,
earning him the title, "FDA Dragon Slayer."
He is the 2007 recipient of the Cancer Control Society's Humanitarian
Award for "winning and preserving our great civil rights to life, to
liberty, and to health freedoms."
Mr. Emord has practiced constitutional and administrative law in
Washington, D.C. for the past twenty-five years. He is routinely
consulted by industry, Congress, and the media on regulatory issues that
affect health freedom. He is the author of four critically acclaimed
books: Freedom, Technology and the First Amendment (1991); The Ultimate Price (2007); The Rise of Tyranny (2008); and Global Censorship of Health Information (2010).
I hoped Mr. Emord would give us real and detailed information on
substantive issues facing Americans today. He responded in kind, and
went the extra mile. He cleared up a number of popular confusions, and
offered several predictions based on his long experience as an attorney
in the field of health freedom.
One of the most critical points Mr. Emord makes: The laws Congress
passes can be twisted by the federal agencies responsible for overseeing
those laws. For example, the FDA has reinterpreted health law to suit
its own slanted purposes. This is an extreme violation of the
Constitution, and it endangers the American Republic. Federal agencies
can, in effect, illegally become legislators and enforcers.
This is not a brush-off interview. Mr. Emord provides a compelling
and extensive case that should be read, studied, and acted on by other
attorneys, health-freedom advocates, nutritional-company executives, and
all citizens who value their freedom.
JON RAPPOPORT: DSHEA is a federal law that was passed in 1994 to
protect the public's right to buy and take a wide range of nutritional
supplements. It's considered our best bulwark against invasive actions
by the FDA. Did DSHEA really give us reliable protection? Where do
things stand today?
Has the FDA eroded that law over the last 16 years?
Are we in trouble?
JONATHAN EMORD: DSHEA has not given reliable protection against FDA
censorship or FDA restrictions on access to products. In certain
respects the law itself is to blame because of flaws in its design; in
other respects FDA has purposefully misconstrued the law to defeat its
plain and intended meaning. Congress has been derelict in
counteracting the agency's abuses--in no small measure because the drug
industry benefits from those abuses and has such influence over the
House Energy and Commerce Committee and the Senate Health Committee that
no meaningful reforms ever occur.
I was invited to comment on the bill when it was in draft form. I
said then that certain provisions in the bill would enable the FDA to
censor health information and restrict access to supplements. I opposed
inclusion of those provisions to no avail.
In particular, DSHEA requires supplement companies to file, with the
government, notice of use of structure/function claims [statements about
the positive effects of a nutrient on the structure or function of the
body]. At the time the bill was being debated, I explained that since
structure/function claims were protected speech under the First
Amendment, there was no sound justification for requiring any company to
submit them to the FDA for review, and that forcing companies to do so
would invite FDA mischief. I explained that inevitably FDA would use
structure/function claim review to redefine claims from the category of
structure/function to the category of prohibited drug claims, thus
reducing the quantity of free speech available for expression. That has
happened.
The DSHEA permits the HHS Secretary to adopt good manufacturing
practice guidelines [GMP] for supplements [how supplements should be
made in the lab-factory]. I warned at the time the bill was being
debated that this provision would invite considerable agency mischief,
that FDA would use GMP regulation to put the industry under its thumb
and stop the marketing of supplements on technicalities, thereby ridding
the market of any product it did not like. That is now happening.
We hired Steve Hanke, the Senior Economist on President Reagan's
Council of Economic Advisors, to evaluate the impact of the GMP rule.
He determined that the cost of compliance per year [to supplement
companies] would exceed the finances of roughly one-third of all dietary
supplement manufacturers, resulting in their elimination from the
market. In the GMP rule, FDA put the estimate more conservatively, but
admitted that it would eliminate about one-quarter of the market. The
evaluation we were provided also concluded that there would be less
variety of product available to consumers and that the cost of product
would increase. The FDA also admitted these effects in its GMP Final
Rule. FDA is vigorously pursuing its inspection agenda. Within the
next several years we should see the fall-out. FDA has increased its
reliance on direct court action instead of negotiated settlements of
disputes with the industry. That too will result in a loss of companies
and a reduction in consumer offerings.
The DSHEA adulteration provision included language limiting FDA
action to ban supplements to instances where the agency could prove that
they presented a significant or unreasonable risk of illness or
injury. Congress intended for this to be a meaningful barrier to FDA,
compelling the agency to prove supplements capable of causing harm
before removing them from the market. FDA has construed this language
to give it virtually unbridled discretion. In its ephedra ban, for
example, FDA in effect rejected the Paracelsian model for assessing
dietary supplement adulteration (i.e., dose determines toxicity) in
favor of the precautionary principle. Under that [precautionary]
principle, if a nutrient causes harm at some dose level (a universal
fact because everything, including, water, causes injury at some dose
level), it would be presumed adulterated until the industry proved it
safe beyond doubt at another dose level. That shifted the burden of
proof from FDA (where Congress placed it) to the industry (where FDA
prefers that it be), enabling FDA to ban any nutrient it wishes on
evidence readily available that at some dose level [at preposterously
high doses] it causes harm.
The DSHEA included a provision to permit dietary supplement companies
to distribute scientific literature on nutrient-disease associations [a
nutrient can help alleviate a disease] to the public, including to
their customers. At the time, I warned that the provision included
ambiguous requirements that FDA could construe to emasculate the
speech-protective intent of Congress. FDA has in fact gone farther than
I had anticipated. FDA completely eviscerated this provision by taking
the position that any scientific publication that associates a nutrient
with a [positive effect on a] disease...can still be forbidden by FDA
because company provision of the literature to customers would
constitute "evidence of an intent to sell the product as an unapproved
new drug."
I also opposed the provision that required submission of a new
dietary-ingredient notice to FDA for every nutrient first sold after the
date of passage of the DSHEA. Under that provision, if FDA does not
object to the notice, the product is legally marketable. I thought that
if a product met the definition of a dietary supplement, FDA should
have no power to prevent its marketing. I warned that FDA could use its
discretion to require a degree of proof for safety that was so high as
to make it impossible for any new dietary ingredient to enter the
American market. While FDA has not construed it to be absolutely
prohibited, it has made it very difficult to market lawfully any
nutrient first introduced to the American market after the date of
passage of DSHEA.
The dietary supplement industry is in trouble because the FDA harbors
an unscientific bias against supplements, principally arising from its
desire to protect the agency's foremost regulatee, the drug industry. I
remember when folks were arguing that the GMPs were a good idea because
industry leaders had connections with FDA and could assure that the
agency would not abuse its power. The dietary supplement industry has
never had a very effective lobby and is a Lilliputian compared to the
Leviathan drug industry. I have often used the following metaphor to
describe the power triangle at work. The drug industry is like an
enormous elephant, and the FDA is like a blind jockey atop the elephant
incapable of altering the elephant's course. The dietary supplement
industry is like a flea on the elephant. So long as the flea does not
irritate the elephant, everything proceeds smoothly, but as soon as the
flea causes irritation, the elephant signals its displeasure and the
blind jockey whacks about the surface of the elephant with his riding
crop until he nails the flea. Some in the trades and in the dietary
supplement industry have an inflated view of their influence over FDA.
The drug industry they are not, and to the drug industry they are
entirely beholden for any regulatory crumb that falls off that
industry's table.
RAPPOPORT: Many commentaries about Codex have circulated on the Web over the past decade.
What is Codex and what is its goal, vis-à-vis nutritional supplements?
Are the American people going to be forced to accept the provisions of Codex? Is this a looming reality?
EMORD: The Codex Alimentarius Commission is an organization of the
United Nations Food and Agriculture Organization and the World Health
Organization. It is a standard setting body. The standards it adopts
each member state is expected to implement or, if not, to explain why it
has chosen not to do so. If the failure to adopt a standard caused a
member state to discriminate against imports, that state could be
challenged for its failure before the World Trade Organization. More
commonly, however, the Codex Commission serves as a forum for member
states to exercise influence over one another in the adoption of
domestic standards governing the availability of dietary supplements and
the dose levels in the market. By adopting a standard, as Codex has
done, recommending that member states determine whether vitamins and
minerals are safe at particular dose levels and ban them at dose levels
not determined safe, the Commission places the onus on members to
implement regulatory regimes based on dose and, implicitly, on the
government-preferred precautionary principle. That has encouraged the
development of extensive EU prior restraints on the availability of
dietary supplements in the market and has advanced the European
attachment to and advocacy for the precautionary principle as the best
means to assess toxicity. In short, Codex has become a coercive force
in favor of restrictions on dietary supplements and what can be said
[what health claims can be made] about them.
The U.S. Food and Drug Administration admires the European system of
controls and can alter its interpretative construction of existing
regulations to "harmonize" the American model more closely with the
European model of regulation. U.S. delegates to Codex should be
opposing the movement toward greater restrictions on supplements and
claims. Instead, they quietly acquiesce in those restrictions and work
toward effecting similar restrictions within the United States through
reinterpretation of existing agency rules.
RAPPOPORT: What can you tell us about the legal status of
nutritional supplements in Europe? Is the EU really destroying the
public's right to buy a wide range of nutrients? What's the situation?
Are there serious implications for America?
EMORD: Under the European Union Directive governing dietary
supplements, no dietary supplement is legal to market without first
being found safe and bioavailable by the European Food Safety Authority
[EFSA]. Moreover, no claim--not even structure/function
claims--concerning health effects of a dietary supplement may appear on
labels, in labeling, or in advertising of a dietary supplement in Europe
without first being approved by EFSA. This massive system of prior
restraint has imposed a nutrition Dark Age on Europe. As the EFSA
determinations continue to be enforced by the EU member states, hundreds
of products that had been safely consumed for decades will be removed
from the market. Also, claims will disappear, leaving Europeans in the
dark as to the potential of nutrients to affect health and disease.
This system is a form of Lysenkoism or state created orthodoxy over
science. It is dumbing down the European market and removing from it
health enhancing substances. In the end, there will be a rise in
age-related diseases for which risk is diminished by supplementation,
such as cancer and cardiovascular disease. EFSA will be responsible for
creating a very unhealthy environment all in the guise of protected
European consumers from anything less than certain science.
In truth almost nothing in science is certain; nearly everything is
inconclusive, yet we make decisions every day based on the inconclusive
science--based on personal bets on the extent to which we think evidence
of association [is] correctly indicative of ultimate outcome. Remove
from us that evidence of association by force of law and we become
incapable of making informed bets.
EU censorship of all information in the market not proven
conclusively true necessarily censors information on nutrient-disease
relationships that will in time be proven true. That present censorship
will cause those who would bet on the ultimate truths to be denied the
opportunity of guessing right and, thus, they will lose out in
potentially fatal ways.
That is precisely what happened to the FDA. We sued the FDA when it
refused to authorize a claim associating folic acid with a reduction in
the risk of neural tube defects [NTD]. FDA took the position that the
association had not been proven that folic acid containing supplements
could reduce NTD risk. FDA censored the information for some six years,
contributing to over 2,500 preventable NTDs each year and to countless
NTD related abortions. We ultimately defeated FDA's censorship in
Pearson v. Shalala. That then led in time to FDA allowance of the
claims when we beat the agency a second time for refusing to permit the
claims. The result has been a steady reduction in the incidence of NTDs
in the United States as more and more women of child bearing age learn
of the need to take folic acid supplements containing 400 (and
preferably 800) mcgs each day before they become pregnant.
What will the scientists within EFSA think of themselves if five,
ten, twenty, or more years from now proof positive arises that certain
nutrients they have condemned are associated with significant reductions
in the risk of cancer and cardiovascular disease such that tens of
thousands of Europeans could have lived had they been given market
access to information concerning the association years prior?
The EU ban on supplements and supplement claims (unless pre-approved
by EFSA) is now in place. EU depends on its member states for
enforcement. Each state is variously engaged in enforcement with some
using more aggressive methods than others. Over the next several years,
however, we can expect to see crack downs in each of the member states
with products being removed from the market following each crack down.
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. 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.
JON RAPPOPORT
www.nomorefakenews.com
qjrconsulting@gmail.com
EMORD AND ASSOCIATES
www.emord.com/
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