First Ammendment and Baby Food

M. Nestle discusses her concerns with an Enfagrow toddler supplement that, in the company's words, has minimal added sugar - most of the sugar is lactose from the milk - and to which they added some nummy nutrients in the hopes of getting better nutrition to picky eaters. Getting more nutrients into a picky eater is pretty high on my agenda, certainly, as Econolad gets sick just looking at most foods.

But the company makes a number of other claims beyond "your picky toddler will eat and get some nummy nutrients." They claim (in those bright bubbles on the left) it's brain food, stimulating growth and immune system development.

Claims that are largely unsubstantiated.

And the FDA does nothing.

The main reason for FDA inaction is because companies defend their ... decorative choice of words as Protected Free Speech, and so:

a D.C. District Court judge ruled that the FDA cannot deny health claims that link selenium supplements to reduced risk of several diseases, or require those claims to be qualified, just because the claims lack adequate scientific substantiation. In other words, supplement makers can say anything they want to about the benefits of their products—on the grounds of free commercial speech—whether or not science backs up the claim.

She then argues:

I am not a lawyer but I thought that intent mattered in legal cases. Surely, the intent of the founding fathers in creating the First Amendment was to protect the right of individual citizens to speak freely about their political and religious beliefs. Surely, their intent had nothing to do with protecting the rights of supplement, food, and drug corporations to claim benefits for unproven remedies, or to promote sales of sugary foods to babies.

I think it is time to give these First Amendment issues some serious thought

One commenter added:

I think the First Amendment protection of claims not scientifically backed is correct. Having the government decide whether the conclusions of scientific studies are correct, or whether the study was properly executed or relevant to authorize a manufacturer’s claim is not what I want bureaucrats doing for me. If producers make a false and fraudulent claim, you and a bunch of attorneys general can sue the retailer and the manufacturer. Fair enough. Having the government decide what should be protected speech and what should not be is a slippery slope that will eviscerate the First Amendment.