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Warning: Contains Juice

May 2, 2014

Such is the title of an opinion piece in today’s Wall Street Journal. The op-ed discusses a free speech case about to be heard by the D.C. Circuit Court of Appeals in which the Federal Trade Commision (FTC) is attempting to raise the bar on health claims made by companies on their commercial products via an attack on Pom Wonderful’s claim that its pomegranate juice can help you “cheat death.” The FTC aims to make it necessary for health claims to be buttressed by two randomized clinical trials, similar to the FDA’s requirement for drugs.

The piece argues that “advertising is an important form of speech because it informs consumers and increases competition.” The Journal argues that health claims made by food producers should be protected speech because they contribute to the free exchange of information and ideas about health; for example, Kellogg’s claims about the cancer-fighting benefits of fiber in one’s diet, which were first advertised along with its AllBran cereal in 1984, helped to raise awareness among the public about fiber consumption, which in turn prompted other companies to include more fiber in their products.

In defense of its opinion, the Journal cites the 1975 case Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, in which the majority opinion claimed, “A consumer’s interest in the free flow of commercial information may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” It’s a nice quote, but the Journal fails to mention that in that case, the issue was whether pharmacists should have free speech protection in advertising drug prices (prior to the court’s ruling, pharmacists were barred from advertising prescription drug prices in Virginia), commercial information that is purely factual. The Court argued that pharmacists should, indeed, have the freedom to advertise drug prices and that doing so aided consumers in making informed choices.

But in the present case, the free speech being contested may not be factual. Sure, pomegranate juice may contribute to better health—but it also might not. Why should companies be able to make tenuous health claims without clinical evidence? While pomegranates have been shown to contain important antioxidants, how do we know that those antioxidants are still present in sufficient quantities in the juice (which is processed and pasteurized) to provide any benefit? To the contrary, there is actually mounting scientific evidence that fruit juice provides very little benefit to health and that it can in fact cause more harm than good because of its high sugar content.

In the same majority opinion issued by the Court for the case cited by the Journal (which I read out of curiosity), the justices assert, “Untruthful speech, commercial or otherwise, has never been protected for its own sale [sic?]. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely” (emphasis mine).

Many health claims made by food companies are extremely misleading—at least according to my fairly in-depth research on the topic of nutrition—and I, for one, support the FTC in upholding a standard that would make it harder for companies to make such claims without significant supporting (and scientific) evidence. The U.S. Constitution was created to sustain a successful democracy, which requires an engaged and informed citizenry—upon this all of our Founding Fathers agreed. Misleading health claims do not contribute to an informed citizenry but rather to a capitalist oligarchy that enriches itself by taking advantage of the population’s desire for better health. Sufficiently supported health claims, on the other hand, would strengthen our democracy by empowering consumers with information that would enable them to make food choices that would foster longer, happier—and hopefully more engaged—lives.

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