© 2004  Karen Selick
What If Snake Oil Really Isn't?
An edited version of this article first appeared in the April, 2004 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.



What If Snake Oil Really Isn’t?


Canadians can go on the internet and read to their hearts’ content about new research showing how diet affects health.  Worried about prostate cancer, gents?  Download some info on tomatoes and lycopene.  Are clogged arteries your concern?  Google up on how the omega-3 fatty acids in fish or flax seed oil might help.

What Canadians can’t do is go into a supermarket and find this information posted next to the tomato display or the fish counter.  They can’t go into a health food store and find the information on the shelf beside the lycopene capsules or printed on the bottle of the omega-3 oil supplements—at least, not if the store is complying with the law.

That’s because subsections 3(1) and 3(2) of the Food and Drugs Act make it illegal to advertise any food to the general public as a “treatment, preventative or cure” for the diseases listed in the Act, including prostate disease and arteriosclerosis.

As a result, those with enough time, initiative, sophistication and money to seek out the latest health discoveries can be better informed and healthier than their brothers who lack the time or skill or access to a computer.

Virtually everyone involved with natural health products—including the federal government’s Office of Natural Health Products (ONHP)—agrees that this state of affairs must end.  In a report to the Minister of Health dated March, 2000, the ONHP recommended the repeal of subsections 3(1) and 3(2) of the Food and Drugs Act.  Four years later, the law remains.   A private member’s bill to repeal those subsections, Bill C-420, was introduced by MP James Lunney last year, but probably won’t make it through parliament before the election is called.

Anyone who patronizes health food stores knows that this law is frequently sidestepped.  While product labels may be meticulously devoid of health claims, there are often books or leaflets available nearby asserting the health benefits of particular supplements, and the clerk behind the counter often volunteers forbidden information. 

Prosecutions are rare, but not unheard of.  Kamloops lawyer Shawn Buckley has handled the defence of the Strauss Herb Company and its principals a few times.   He believes subsections 3(1) and 3(2) would probably be found unconstitutional as a violation of the Charter guarantee of freedom of expression, if the case ever got that far.  However, after he gave notice of a constitutional challenge during one prosecution, the Crown agreed to stay the charges.

The debate over what can or can’t be publicly stated about nutritional supplements is certainly not unique to Canada.  In 1994, Durk Pearson and Sandy Shaw, authors of the best-selling book Life Extension, filed a lawsuit against the U.S. Food and Drug Administration (FDA) seeking to be allowed to state on their products that “consumption of omega-3 fatty acids may reduce the risk of coronary heart disease.”  Ever since 1959, the FDA’s position had been that “any claim, direct or implied, in the labeling of fats and oils…that they will prevent, mitigate or cure diseases of the heart or arteries is false or misleading and constitutes misbranding [a criminal offence]…”

After seven years of litigation, the FDA finally conceded that Pearson and Shaw could make the requested health claim on their product label.  However, the FDA also forced them to add:  “Although there is scientific evidence supporting the claim, the evidence is not conclusive.”

In May, 2003, the U.S. government made an abrupt about-face.  The White House is now encouraging Americans to increase their consumption of omega-3 fatty acids and says, “The government should make this life-saving information as widely available as possible.” 

The obvious question is:  how many Americans died of heart attacks during the years between 1959 and 2001 because a U.S. government agency wouldn’t allow anyone to tell people what they could take to prevent them? 

Canadians should be asking this question of our government, too.

No doubt laws like these were originally passed for a benevolent purpose—to protect the public from quackery.  Unfortunately, the harm they cause may well outweigh the good, when it turns out that the stuff some bureaucrat labeled “snake oil” actually possesses valuable medicinal properties.

Laws like this can easily be perverted to different, malevolent, purposes.  For instance, where lax enforcement is the norm, as it is in the health food industry today, selective prosecution (triggered perhaps by an “anonymous” complaint) can become a tool for targeting individuals who just happen to have annoyed the authorities for completely unrelated reasons. 

Laws like this also give an unfair advantage to those who sell competing patented drugs for the same ailments.  The manufacturers of expensive cholesterol-lowering drugs probably don’t want the public to know that equal or better results may be obtained from taking less expensive fish-oil supplements or simply eating sardines regularly.

The government should be red-faced with embarrassment over its record in the medicine-approving field.  Not only has it withheld its endorsement from healthful products, it has all too often granted approval to things that later proved harmful.  Hormone replacement therapy for menopausal women was okay, they said—until we learned it may increase cancer risk.  A new class of heart and blood pressure medications was approved but recent news stories say they kill more people than they save, and old-fashioned diuretics are more effective. 

With this history, why are Canadians so complacent about entrusting their health to the state?


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April 18, 2004