http://www.mi-cherries.com/fda1.htmOn October 17, 2005, letters went out from the Food and Drug Administration warning tart cherry purveyors that they had better quit telling people that tart cherries have health benefits or dire things are going to happen. The lucky recipients were warned that it's illegal to say things like, "The same chemicals that give tart cherries their color may relieve pain better than aspirin and ibuprofen." Testimonials such as, "I no longer take any drugs!" had better cease - or else. Although most of the 29 letters were aimed at Michigan tart cherry growers, some were fired off to growers of other berries in other states. What prompted the berry attack is still at large. Inquiries to the office of Judith Putz, compliance office for the FDA's Detroit district office, didn't yield answers beyond that the FDA had become aware that people were "making claims." The action is not unprecedented, however. Back in 2001, somebody at Food and Drug got bugged about a different berry - the cranberry.
...
Unlike the cranberry situation, however, the recent attack on tart cherries is aimed at statements made on websites not linked to labels. Since the FDA has no authority to dictate website content - which is regulated by the Federal Trade Commission - we asked the agency by what authority it was threatening to seize property and stop people from selling tart cherry products. The agency responded that websites are part of the legal definition of "label." A reading of the legal definition, however, reveals that a label is, well, a label - something stuck to a product or its package. The definition also allows Food and Drug to regulate things that come with the product, such as a package insert. But no mention is made of websites.
What The Supreme Court Says
Not surprisingly, some in the cherry industry are talking about their First Amendment Rights. "Tart is Smart," according to King Orchards, and it's not rolling over. Neither, apparently, is the Supreme Court. In sharply worded opinions, the Court has repeatedly rebuked the FDA's "highly paternalistic approach" to keeping information from people for their own good.
When the FDA tried to keep compounding pharmacies from advertising, the Court warned the agency that whether a person wants alternative choices is not the government's decision to make. The searing verdict: Bans against truthful, non-misleading commercial speech... usually rest solely on the offensive assumption that the public will respond "irrationally" to the truth. The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good. The Court further admonished the agency to quit trying to protect favored markets by suppressing information. According to these and other Court opinions, the FDA appears to have more bureaucratic bark than legal bite.
*empahsis