Lawyer cites 'free speech' as basis for legal action on claims

European food and drink companies could “lift the yoke of censorship” if they could prove that the EU health claims Regulation denied them the right to freedom of expression, according to Jonathan Emord, from Emord & Associates – experts in US constitutional and administrative law.

In considering possible grounds for legal action to challenge the way the European Food Safety Authority (EFSA) was assessing health claims, Emord argued that food and drink companies should consider presenting EFSA with qualified claims for approval that overtly informed the public of the inconclusiveness of the science – similar to the qualified claims system operating in some other markets.

He was speaking at the NutraIngredients Health Claims 2010 conference in Brussels last Thursday.

If an application were still unsuccessful, said Emord, then it could be argued that the legislation’s failure to allow any claim of association, regardless of how qualified, violated the principle of proportionality.

This was because the act of censorship was beyond what was reasonably necessary to achieve the objectives of the legislation, said Emord, who has defeated the US Food and Drug Administration six times in federal court. Five of these cases related to free speech.

“Nutrition science, like science in general, fails to fit neatly into the legal paradigm of the state censor,”​ claimed Emord. "A go-no go approach to claim allowance, such as that employed by EFSA, fails to ensure public access to emerging science.” ​

EFSA’s opinions rejecting health claims, he continued, if adopted by the European Commission, prevented essential information from reaching European consumers.

“The food market that exists following EFSA censorship is one largely barren of debate concerning nutrition science … it keeps from consumers emerging science necessary to exercise informed choice.”​

He claimed that the consequence of EFSA’s ‘extreme paternalism’ was not only a threat to free speech; it was also a threat to the welfare of the European community.

The French philosopher Voltaire condemned censorship, he added. “He did so out of profound respect for the individual rights of men to decide for themselves the relative worth of speech offerings. He wrote: ‘Think for yourselves and let others enjoy the privilege to do so, too.’ ​

That simple yet profound adage should be tattooed on the foreheads of each EFSA decision-maker.” ​

Owen Warnock, partner at UK law firm Eversheds, said that there could be some mileage in this type of defence. However, he warned that a claim, which referred to the inconclusiveness of scientific evidence, was open to the kind of abuse that the legislation was designed to stamp out.