It is the law that “truthful and not misleading” commercial speech is protected by the First Amendment. Back in 2003 I wrote about traditional use claims for natural products. You can find that here: http://www.lifespirit.org/traditionaluses.htm – I concluded:
The essence of the current American rule on Traditional Uses is, as stated by FTC, “Claims based on historical or traditional use should be substantiated by confirming scientific evidence, or should be presented in such a way that consumers understand that the sole basis for the claim is a history of use of the product for a particular purpose.” Remember, FDA regulates labels while FTC regulates advertising (however, FDA can consider literature about a product to be an extension of the label).
Further, the agencies will look much more closely at products that claim to cure serious disease than products that claim to support normal structure and function. Disclaimers and Disclosures need to be carefully crafted. These are the regulatory requirements that must be met to base advertising claims on the Traditional Use of a product.
This past November the Federal Trade Commission had more to say about traditional use claims, in this case, about such claims for homeopathic products.
“According to Richard Cleland, assistant director of the division of advertising practices at the FTC, we might not be seeing that exact languages on boxes, but the products need to both say that their claims are not based on scientific evidence, and also say what they are based on….
“Other products need to support their claims, so why shouldn’t homeopathic products?” counters the FTC’s Cleland. “They’re not different; they’re going to be held to the same standard.”
Cleland doesn’t think the labeling will necessarily dissuade people from purchasing homeopathic remedies, and that’s not the FTC’s goal. “We believe the consumer should have as much accurate information as they can before making purchasing decisions.”…
Daniel Fabricant, the executive president of the Natural Products Association, says that “this is a clear example of jurisdictional creep.” …“
The new FTC pronouncement does not represent a true change of policy, which would be contrary to the FTC’s mandate from Congress which limits its rule-making authority, rather, it appears to be a change in enforcement emphasis.
With homeopathic products having special legal protections from FDA interference, granted by Congress, it does not surprise that a different agency would engage in “jurisdictional creep” — similarly to the DEA’s recent opinion that CBDs (cannabidiols) — a natural part of our bodies — can be made contraband by DEA edict, after the FDA failed to convince anyone that CBDs were not grandfathered under DSHEA (the Dietary Supplement Health and Education Act).
All of these are examples of more government overreaching, interfering with consumer choice, despite the lip-service expressed by the FTC spokesperson in favor of consumer choice.
That is, of course, settled law, held so by the Supreme Court in the 2002 landmark Thompson v Western States case, wherein the Court opined:
“If the First Amendment means anything, it means that regulating speech must be a last – not first – resort. *** We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making [even] bad decisions with the information….”