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EU Maximum Vitamin and Mineral Dose Levels

In an excellent piece by Shane Starling in today’s, Shane explains the debate now raging in the UK over the 2002 EU Food Supplements Directive provision requiring the setting of maximum permitted levels for nutrients in food supplements.  He explains that an estimated 700 health food stores and 4000 jobs would be lost throughout the European Union if the provision is enforced.

This kind of draconian state paternalism which deprives individuals of their freedom of choice without any proof of injury threatens the economic vitality of EU food markets at precisely the time when unemployment levels skyrocket in EU member states and state social and medical services are stretched to the limit.  But for the Proxmire amendments to the Food Drug and Cosmetic Act, the maximum permitted levels regime of Europe would be visited upon the American market with equally devastating effects on unemployment and freedom of choice.

There is in every ingestible substance risk of injury for at least some subpopulation.  Navigating that risk when it is the exception, not the rule, is ordinarily the task assigned to the individual.  In Europe and the Americas we therefore allow nuts and nut butters to be sold despite the fact that a not too inconsiderable number of people will suffer an allergic reaction, even anaphylactic shock, from contact with nuts.  We do so on the correct supposition that consumers with such allergies will steer clear of nuts and that to remove nuts and nut butters entirely from the market would deprive the rest of society of an essential freedom of choice.

The underlying supposition in the EU, and increasingly in the United States, is that food choices should not be left to the individual, that limits ought to be placed on serving sizes, on the quantitative amounts of nutrients, and on information concerning the possible or probable effects of nutrients to constrict choice within politically preferred parameters.  The problem with this approach is not only its assumption that freedom of choice is of little value compared to political preferences but also that political preferences are somehow free of anti-competitive bias, appropriately discount the positive health effects associated with the nutrients in question, and carry with them burdens on the economy that must be tolerated.  Truth be told, the political choices made spring not from some pristine scientific academy but from individuals whose own future depends on making calculated decisions as to which market players are made winners and which losers.  It is precisely because market forces reflect consumer choice that they best balance freedom of choice and risk of injury (products that carry with them adverse health effects are shunned by consumers or, if not, are consumed by them cognizant of the effects through an assumption of risk).  It is precisely because political forces reflect the extent to which regulatees have clout in the inner circles of government that they so poorly balance freedom of choice and risk of injury, resulting in such dubious decisions as blanket limits on the quantitative amounts of nutrients sold in the market.

Whether evaluating a concept, performing regulatory due diligence, maintaining or prosecuting regulatory filings, or contesting adverse litigation, Emord & Associates provides exceptional counsel for all your litigation and regulatory needs.

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