© Whole Foods Magazine

August 2005

FDA Injustices Against The Health Food Industry

An interview with Frank Murray: Part 2

 

By Richard A. Passwater, Ph.D.

 

In the July issue, we began a conversation with Frank Murray, who has been an author, editor and health freedom advocate serving the natural products industry for more than 40 years. Frank began his industry career with Health Foods Retailing, which was the “official” magazine of the National Nutritional Foods Association (NNFA). He also has edited Better Nutrition and Today’s Living, and currently he is senior editorial adviser for Let’s Live, GreatLife and Physical magazines.

Frank also has been the author or co-author of 43 books on health and nutrition, including some written in collaboration with Ruth Adams, which are among my favorite books. Frank is a member of the New York Academy of Sciences and, on his own, wrote More Than One Slingshot, which still is counted by many as the definitive history of the health food movement in America.

In this concluding installment, Frank details some of the contributions made over the years by the NNFA’s lawyers Milton Bass and Robert Ullman, former FDA scientist Dr. Jacqueline Verrett, longtime retailer and champion bodybuilder Vic Boff, and many others. (This interview was conducted in the fall of 2004,)

 

Passwater: Frank, when we left off last time, you had mentioned the infamous 1976 vitamin and mineral hearings, in which NNFA lawyers, led by Bass and Ullman and others, prevented the FDA from sneaking through their agenda against the health food stores. Please tell our readers more about these hearings.

 

Murray: The numerous battles with FDA are too detailed to recap in a few moments. Suffice it to say, the agency used every underhanded tactic it could muster to throw Bass-Ullman off guard. At the core of FDA’s approach was that, if a vitamin or mineral exceeded the RDA, it would be declared a drug, and you would need a prescription to buy the supplements at a pharmacy. The FDA also suggested that supplements exceeding 50% of the RDA would be declared a drug. The FDA also attempted to curtail the sale of vitamins A and D over the counter, claiming that megadoses were dangerous.

 

Passwater: The health food industry owes Milton Bass and Bob Ullman a great deal of gratitude. I was standing in the aisle at the 2004 Expo East with Bob Ullman. Bob is now the senior partner in the New York firm of Ullman, Shapiro and Ullman. As we looked around the vast exhibit area filled with several hundred exhibitors, I turned to him and said, “Bob, I don’t think that these people would be here today if it weren’t for Milton and you. I bet 90% of those here don’t realize all you have done to save the industry from the injustices of the FDA.”

Frank, mentioning Bass and Ullman also reminds me of the old NNFA meetings such as those in the 1970s, when there were only a few of us that lectured, and all retailers had to attend our lectures in order to earn their certificates. Each speaker had an audience of over 1,000 retailers. As an example, in 1977, the attendees received a certificate signed by the lecturers, Dr. Emanuel Cheraskin, Dr. Roger Williams, Dr. Robert Linn and myself.

We had a lot of fun in those days in spite of the ongoing battles with the FDA and medical establishment. I also remember one of the NNFA events being a celebrity roast. I remember the roasting we gave Milton Bass at the Las Vegas Hilton Showroom. I was a roaster and you sang.

 

Murray: Yes, that was fun. At Milt’s roast in 1979, I sang “Im wunderschonen Monat Mai.” from Schumann’s song cycle “Dichterliebe.”

 

Passwater: You were one of the first to detail the financial relationships between the FDA and the food and drug industries. This was not widely known then. What type of “hanky-panky” did you report?

 

Murray: Today, it is common knowledge that musical chairs is a favorite game in Washington. An FDA commissioner or other FDA employee comes from industry to run the agency, and these same people return to industry to provide information to the FDA. This applies to many agencies. For example, in one FDA case, an advisory panel member with interest in Eli Lilly, which produced an antibiotic, cephaloridine, participated in hearings when the drug was being discussed by a panel.

In another case, an advisory committee of FDA voted to continue using a potentially harmful drug added to cattle feed. One of the committee members was president of a large cattle feed lot in Colorado.

In a fascinating report, “Feeding at the Company Trough,” which was reprinted in the Aug. 24, 1976 issue of the Congressional Record, Rep. Benjamin S. Rosenthal (D-NY), explained how nutrition and food science professors at Harvard, the Universities of Wisconsin, Iowa and Massachusetts, among others, work closely with food and chemical companies and are often called as consultants at Congressional hearings.

There are the familiar stories about Dr. Fredrick Stare of Harvard, whose multi-million-dollar nutrition building was funded by General Foods. He often testified as an expert witness for Kellogg’s, Nabisco, Continental Can, Carnation Milk, etc.

 

Passwater: The public is finally starting to realize how the FDA has adversely affected the health of our citizens by severely limiting the dissemination of truthful information regarding nutrients and health. On July 30, 2004, the Federal Trade Commission admonished the FDA for limiting this information. The FTC told the FDA, “Permitting such information would help consumers make informed dietary choices and promote competition among manufacturers to develop and market healthier food products.” The FTC staff recommended that the FDA make its regulatory decisions consistent with the results of consumer research on ways that health claims may be made for foods without deceiving consumers.

In earlier columns (WholeFoods September and October 2003), I have described the efforts of constitutional lawyer Jonathan Emord to force the FDA to allow such information to be made available to the public. But few people realized the FDA went so far as to try to ban health books such as ours in health food stores. Please tell our readers about how the FDA attempted to illegally curtail the sale of health books, a form of censorship that the Bill of Rights protects us against.

 

Murray: As a continuing vendetta against the health food industry, the FDA reasoned that, by curbing the sale of books, magazines, etc., in health food stores, it could severely hamper the stores’ ability to disseminate information about preventive medicine, natural foods, etc.

In a case that might bring chuckles on Saturday Night Live, the FDA entered the warehouse of Balanced Foods Co in New York City and seized copies of Folk Medicine and Arthritis and Folk Medicine, two popular books by Dr. D. C. Jarvis, along with bottles of Sterling Cider Vinegar and Honey, which were mentioned in the books. This was said to violate FDA’s “labeling laws,” in that products and supporting literature could not be placed within five feet or so of each other.

The FDA easily lost the case, thanks to Bass and Ullman. Judge Lombard ruled that, prior to the seizure, the company had sold 7,000 copies of the book, but only 1,200 bottles of the supplement. These sales were made from Balanced Foods’ store, which measured only 20 by 25 feet. The judge ruled that the product and books could not be in violation of the labeling regulations, because the store was so small that it would be impossible for the two not to be in close proximity to each other.

 

Passwater: The FDA’s unconstitutional attack against health food products included an unlawful and ridiculous attempt to label food supplements “unapproved food additives.” They even ruled that anything else in a supplement other than an officially recognized vitamin or mineral was an unapproved food additive. This included excipients that are used as part of the manufacturing process and are needed to compress powders into tablets, and also to help maintain the potency of many items. The FDA took one company to court and won its case against the manufacturer of DMG. The manufacturer then stayed on the market simply by compressing DMG into fragile pills that were then individually packed in foil.

In another example, FDA made a raid on Traco Labs during November 1988. FDA claimed that black currant oil was an unsafe food additive when put into capsules. The FDA was claiming that any supplement other than vitamins and minerals with established RDA would be a food additive and the manufacturer would have the burden of going through an extremely expensive FDA approval process to establish its safety. The odds were that the FDA would never grant the approval no matter what evidence was brought forth.

During the Traco raid, FDA seized two drums of black currant oil as well as a large quantity of the filled capsules. I remember how Bob Ullman dramatically convinced the judge that the FDA exceeded its regulatory authority. Bob first established that there were no safety concerns with black currant oil. Bob had placed several bottles of different oils on the table along with a few capsules. He asked the FDA’s in-house expert witness if he had any objections if someone were to drink black currant or olive oil straight out of a bottle. The FDA witness responded with something like, “No one would do such a thing.” Bob smiled; the trap had sprung. Bob opened a bottle and took a healthy drink.

He then asked the FDA lawyer to tell the judge what he was consuming. “Was it food? Was it a food additive?” His point was made to the judge. Then he swallowed a capsule filled with the oil and looked at the judge and said “And, now it’s a dangerous unproven food additive?” On January 28, 1993, the U.S. Court of Appeals ruled against FDA. The judge said that the agency’s definition of food additive is too broad, and that under the FDA’s terms even water added to food would be considered a food additive. The judge criticized the FDA for its “Alice in Wonderland end run around the statute.”

In still another ridiculous example, FDA seized a quantity of evening primrose oil and filled capsules from Nature’s Way of Springville, UT on June 30, 1992 during a routine inspection. They also seized a truckload of primrose oil on the road. The FDA claimed it was an unapproved food additive. Nature’s Way successfully sued to recover the product, but was forced to remove the vitamin E from it because the FDA said that Vitamin E had not been approved as a food additive for evening primrose oil.

Unfortunately, there are too many ridiculous examples of this type of harassment for us to list here. However, I will report one especially upsetting example. This concerns a shop owner who was selling holistic pet food. The store of Sissy Harrington McGill, owner of Solid Gold Pet Foods in El Cajon, CA, was raided in March 1990 by the FDA. Products were seized from her store without a search warrant and the FDA claimed her holistic pet food was mislabeled and shut her store down. On July 12, 1990, after being indicted, she chose a jury trial. Upon appearing for her trial, she was clapped into leg irons, put into a Maximum Security Federal Prison for 179 days, and fined $10,000. While incarcerated, she suffered a near fatal stroke.

The FDA also encouraged similar state agencies such as the Texas FDA to raid stores selling coenzyme Q-10. In 1993, the FDA announced that CoQ-10, selenium, amino acids, herbals and high-potency vitamins would be taken away by the end of the year. According to the Life Extension Foundation in Hollywood, FL, 24 million Americans responded to the FDA’s threat by inundating Congress with letters, faxes and phone calls that caused the FDA to abandon its proposed ban of these nutrients.

Fortunately, the DSHEA Act—the Dietary Supplement Health and Education Act, which Congress passed in 1994—offers some protection for store owners from such aggressive FDA raids. DSHEA requires that FDA, before taking enforcement action against anyone, provide at least 10 days notice and the opportunity to present his or her views.

Frank, would you please share with our readers how we battled against the FDA nonsense to persevere until DSHEA?

 

Murray: First of all, many of the FDA lawyers and spokespeople were no match for Bass and Ullman, in that they did not understand government regulations and how they often misinterpreted their own references. In fact, many of the FDA’s witnesses switched and testified on behalf of the health food industry. And, of course, some of the FDA proposals were completely insane. For example, at one time, if FDA regulations had been adopted, 100 mg of vitamin C would be classified as a drug, while 127 mg of vitamin C in orange juice would be called a food.

In its many battles with the FDA, FTC, postal authorities, etc., the small health food industry had little outside help. Nevertheless, there was a loyal group of supporters who stepped up to the plate time and time again. This group included the personalities previously mentioned, as well as members of Congress and the scientific community; officers of NNFA; prominent industry leaders like Jack Schwartz, Milton Okin, Manny Fred, Eugene Schiff and Jerry Sperling; Hollywood stars like Gloria Swanson; prominent retailers, jobbers and manufacturers; Nobel Laureates Linus Pauling and Albert Szent-Gyorgyi, who discovered vitamin C, Paul Gyorgyi, who discovered B-6; average Americans who came to our defense by sending a million cards and letters to Washington, the second largest avalanche of mail next to the Vietnam War; and even FDA employees.

I especially remember Dr. Jacqueline Verrett, an FDA scientist, who held a press conference and exhibited chickens deformed by Red Dye #2. This so enraged the FDA that her research projects were terminated and she was relegated to a desk in the back room.

Soon after her book, Eating May Be Hazardous to Your Health, was published by Simon & Schuster, it disappeared from public view. Fortunately, it was later published in paperback by Doubleday.

 

Passwater: I believe she also played an important role in keeping thalidomide off the market. It was a drug that caused horrible birth defects in the children of mothers who were given it. More recently she has been looking into the safety of aspartame. I had the privilege of working with Dr. Verrett on a couple of projects.

And I would like to add recognition for others, including Allen Skolnick, of Solgar, who, behind the scenes, have helped foot the bills for many of these legal battles, as well as bring innovation, strong ethics and quality to our industry. 

Frank, you have witnessed the fight for health freedom for many years. What are your feelings about where we’ve been and where we’re going? Have we helped improve the health of our citizens in spite of the FDA?

 

Murray: Interesting questions. First of all, many of the foods and supplements sold in drugstores, supermarkets, etc., originated in health food stores. As soon as they became popular, they migrated to the mass market, and the industry had to develop replacement products. Although we have a long way to go, this industry has been instrumental in convincing many physicians and health-care workers to promote holistic medicine. It is interesting that many doctors take, say vitamin E, but do not recommend it to patients. This goes back to their training in medical schools, where supplements are often neglected.

I am optimistic about curbing the establishment, but, unless we are vigilant, we could just as easily lose our freedom of choice to buy the supplements we want over the counter. The FDA is always looking at ways to destroy the industry. Following the passage of the Proxmire Bill, we had some breathing room with the passage of DSHEA in 1994. But there is an ominous cloud on the horizon. The World Health Organization (WHO) and the United States (heaven only knows why?) have joined the Codex Alimentarius Commission in, among other things, attempting to consolidate the supplement regulations of all countries. The European Union Directive, the predecessor of Codex, was due to take effect in 2005. If reactivated,it will require a prescription to buy megadoses of supplements. The FDA must be dancing an Irish jig.

In many ways, we are back where we started in a classic case of déjà vu: if the regulations are adopted and you want to buy 1,000 mg of vitamin C, you will need a prescription from your doctor to be filled at a pharmacy. This is the system currently in vogue in many countries. You can probably buy 100 mg over the counter. Of course, you can take 10 of the 100 mg capsules to get 1,000 mg, but bureaucrats have never been known for their common sense.

Hopefully, we can prevail, because food supplements, which are relatively inexpensive, are necessary for maintaining optimum health, since many of us do not eat properly. And, as we get older, we do not absorb the proper nutrients that we need.

As I said in More Than One Slingshot, if the grocery industry had not been turning out overly processed, denatured foods, there might not have been a need for health food stores. They did not do that, and so the health food store is the neighborhood bastion against chronic deficiencies. Recognize that no less a mainstream figure than Dr. Paul Dudley White, President Eisenhower’s personal physician, said that he did not encounter patients with heart disease until after the widespread refining of grains, which strips them of essential vitamins and minerals.

 

Passwater: As I mentioned earlier, eating whole foods, whole grains and whole grain flour has been a mainstay of the health food industry since the beginning. Now the official dietary guidelines recommend whole grains and Kellogg’s cereals advertise that they are made with whole grains.

 

Murray: I have always maintained that the industry should be given the equivalent of the Nobel Prize, rather than constantly being ridiculed. With the growing diabetes epidemic, obesity and numerous health problems, there is much work to be done. I have attempted to help with my books, such as 100 Super Supplements for a Longer Life, available in English and Chinese; Natural Supplements for Diabetes, and You Must Eat Meat, with Max Ernest Jutte, M.D.

More Than One Slingshot, now out-of-print, is, to my knowledge, the only printed history of the health food industry. I am hopeful that someone will pick up the story after 1984 and bring it up to date. The copyright is owned by NNFA.

Thanks to Vic Boff, there is a considerable history of the industry, going back to Bernarr Macfadden, in a repository at the University of Texas at Austin, although I am not sure how readily available the material is. It would be helpful if someone would provide funding to enlarge and catalog the collection, perhaps in conjunction with the American Botanical Council, which is also in Austin.

 

Passwater: Vic called me shortly before he passed away to see if I would be able to maintain them in my nutritional library. Unfortunately, I had to decline. I told him I had “Downsized” my library and had just discarded most of my collection of old nutrition magazines, including most of the Health Foods Retailing issues. He lamented what a shame it was that no one seemed to be interested in preserving the story of this great natural movement of the people to better the health of us all. His last words to me were “Carry on.” Frank, I hope you don’t throw away your collection.

On a more positive note, thank you for sharing with us some of the highlights of a few of our battles against the injustice of the FDA. The war continues but the new bureaucrats seem to better understand the importance of the health food industry and the need for the FDA to obey the Constitution of the United States of America.

Thank you Frank Murray, not only for helping to educate our readers, but for all of your good work to inform thousands of readers over the years with your books and your efforts to help protect the public health. WF

 

Author’s Note: It is my fervent hope that readers will contact the appropriate NNFA officials and ask them to give Frank Murray his due for his unselfish service to the NNFA and the health food movement through these many years. His books have educated millions, and his work has brought our message to the people. In my humble opinion, this soft-spoken, mild-mannered defender of our rights deserves an official “Thank You.”Richard A. Passwater, Ph.D.

 

 

© 2005 Whole Foods Magazine and Richard A. Passwater, Ph.D.

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