Monday, June 27, 2011
By Paul Martin

By Attorney Jonathan Emord
June 27, 2011

Without much public notice, governments in Europe and the United States are redefining the meaning of dietary supplement adulteration. Through that redefinition, those governments are laying legal foundations for the removal of a large number of dietary supplements from the market. The actions, reminiscent of government political control of science in national socialist countries of the 1930s, deprive people of a most basic freedom of choice, the right to choose which nutrients to ingest.

In the Sixteenth Century, Swiss philosopher, alchemist, physician, and scientist Paracelsus made an observation that became the essential principle of toxicology: “All things are poison, and nothing is without poison, only the dose permits something not to be poisonous.” In other words, dose determines toxicity. The Paracelsian principle applies to everything, even water. If consumed at a certain dose level, water will cause injury, including death. Conversely, virtually everything has a dose level at which it will not cause injury. From the truth written by Paracelsus came laws European and American that included a presumption that nutrients consumed safely were lawful and that the government bore the burden of proof to show a dose level at which significant and unreasonable harm would occur before it could restrict consumer choice.

Nutrients, like most substances in our environment, are the subject of imperfect scientific knowledge. Conclusive proof of safety is the rare exception. It is thus the case that when we eat common fruits, vegetables, or meats, we do so with some degree of risk that is unavoidable. For all we know we may be in a known or emerging subset of the population that suffers an “allergic” reaction to the nutrient or some other adverse effect and, in certain instances, the reaction may be fatal. Consequently, freedom to choose among nutrients carries with it a degree of risk that is unavoidable. Historically mankind has gladly accepted that risk, limiting government intervention to instances where significant and unreasonable harm was generally occurred.

An alternative view has swept the health governors of Europe and federal and state health regulators in the United States. That view holds inconclusive science concerning the relative risk of commonly consumed nutrients as inherently vulnerable territory warranting government controls and restrictions. The absence of sure knowledge of safety, which creates uncertainty, leads those who favor this alternative view, called the Precautionary Principle, to advocate banning or restricting public access to nutrients until such time, if ever, as sure knowledge of safety is acquired. While that principle has logical importance when a substance is inherently volatile in even tiny amounts (like fissile or some explosive materials), it becomes a bane on freedom of choice when it is imposed on nutrients for which there is a long history of safe human consumption within a wide range of doses.

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