Jonathan W. Emord

By prohibiting all food health benefit claims without European Food Safety Authority authorization, EFSA has replaced a vibrant marketplace of ideas with a vast  wasteland where useful information concerning the potential health benefits of food ingredients is kept from the market. EFSA thus repeats a basic, historic error, one condemned as anathema to freedom and progress over 250 years ago by the leading legal minds and rights advocates of the late Enlightenment Era.

By doing so, EFSA now casts Europe into a Nutrition Dark Age.

Likewise, in the United States, the Food & Drug Administration’s requirement for pre-approval of food health claims and its evidence-based system of health claims review impose significant anti-competitive barriers to entry and dumb down the marketplace, leaving it largely devoid of useful health information.

In both the U.S. and EU, the prior restraints placed before prospective market entrants present major hurdles that stultify and skew competition, deny consumers access to emerging nutrition science, and invite consumer choice to depend more on taste than on nutritional value. In both jurisdictions, claims that a food can treat a disease are forbidden (with the exception of a narrow class of medical foods) unless the food first becomes approved as a drug  (something virtually impossible due to the astronomical costs of drug approval and the virtual impossibility of securing patent protection for foods).

The folly of censorship became apparent to literati of the Enlightenment Era (e.g., Milton, Montesquieu, Voltaire, Hobbes, Locke, Burke, Trenchard, etc.). By the  mid-eighteenth century, continental thinkers understood prior restraint to be a penultimate bane of freedom and progress. In the fledgling United States, constitutional law extended further. In James Madison’s Report on the Virginia Resolutions, he contrasted the Blackstonian prohibition on prior restraint with the nation’s First Amendment prohibition on censorship.

In the world of science, as in the world of politics, truth is rarely, if ever, provable to a certain degree. Indeed, virtually nothing in nutrition science escapes academic dispute. If we view nutrition science along a truth continuum, there is at one end a bare hypothesis for which no science yet exists and at the other a generally accepted scientific proposition. The vast majority of nutrition science exists between the two ends and yet it is that huge quantity of information which EU and U.S. governments censor.

When we substitute EFSA and FDA orthodoxies for informed personal choice, we rob the individual of sovereignty. There is nothing more basic to life than food and almost nothing more important to each of us than informed choice in food markets. We therefore have a fundamental right to know what potential benefits come from foods because without that information we are impaired in our ability to distinguish among foods based on health factors. It is only the knowledge of the potential of food which causes a person to appreciate the wisdom of foregoing a delectable treat that is laden with sugar or carbohydrates in favor of one that is less tasty but more nutritious.

Health-conscious consumers receive less than perfect information from media and enter the market exercising choice without enough data at the point of sale. Information-rich markets lead to consumer choices that are more likely to equate with consumers’ desires. Information-poor markets lead to consumer choices that  are less likely to equate with consumers’ desires. In other words, mistake, including harmful error, is more commonly made in information-poor markets.

EFSA’s and FDA’s paternalism over the food market bears with it a huge risk for regulators, industry, and the public. EFSA and FDA are gambling that an information-poor environment (in which an extreme minority of health claims is allowed) will lead to less fraud and more healthful choices. Of all the assumptions referenced here, that one is the least provable and the most counterintuitive and yet it underlies one of the greatest transferences of sovereignty  in world history. Indeed, economic evidence contradicts it.

Consumers deprived of nutrition science in the food market are more vulnerable to being defrauded because they have less information with which to question the validity of claims. Additionally, they are more likely to make erroneous choices because they, more times than not, proceed on speculation rather than plausible information. Producers are also affected by government fiats that bar health information from the food market. Why increase the health benefits and costs of a food if consumers cannot be informed of the health benefits?

I suspect that over the next several decades EFSA and FDA censorship will result in an increase in the incidence of age-related disease, particularly diabetes, cardiovascular disease, and cancer. That happenstance is not likely to be reversed unless European and American governments abandon prior restraints in favor of post-publication prosecution limited to provable instances of fraud.


Jonathan W. Emord is President of Emord &
Associates, Clifton, Va. 20124
([email protected]).