-Caveat Lector-
from:
http://www.zolatimes.com/V3.4/pageone.html
<A HREF="http://www.zolatimes.com/V3.4/pageone.html">Laissez Faire City Times
- Volume 3 Issue 4</A>
The Laissez Faire City Times
January 25, 1999 - Volume 3, Issue 4
Editor & Chief: Emile Zola
-----
Free Speech Is Whatever the Government Allows
by Zola
Our friends Durk Pearson and Sandy Shaw have kicked FDA butt.
The Food and Drug Administration (FDA) has long violated the First
Amendment with impunity. According to the FDA, you are not allowed to
make scientific statements like "antioxidant nutrients may help prevent
certain types of cancer." Not if you sell antioxidant nutrients and you
want to put that statement on the bottle, and the FDA hasn�t given you
permission. Even though the claim may be true and backed up by
scientific evidence.
It begins with the so-called doctrine of "commercial speech" which is
supposed to have less protection than other types of speech under the
First Amendment. The U.S. Constitution, of course, doesn�t distinguish
between commercial speech and any other type of speech. But the FDA has
relied on the commercial speech doctrine for its underlying authority,
and proceeded in its rulemaking to only approve claims for which there
is "significant scientific agreement".
What is "significant scientific agreement"? Whatever the FDA says it is.
They have refused to define the term. Pearson and Shaw grew tired of
this nonsense, took the FDA to court, and won in a 3-0 circuit court
decision. In defending the FDA�s own actions, the FDA�s attorney even
went to the length of arguing that its parent agency, Health and Human
Services, makes misleading statements. The Court mocked this approach.
THE COURT: . . . Do you seriously argue that these statements are
inherently misleading?
MS. KOHL [Christine N. Kohl, representing the FDA]: In the FDA�s
judgment, Your Honor, yes, they are. There is such power over the
consumer in the market place at the point of sale . . .
THE COURT: . . . what if the proposed statement were exactly what your
FDA�s parent agency [HHS] said, quote, "Fatty acid omega-3 is under
study because of a possible association with a reduced risk of heart
disease in certain people." That was the only thing they wanted to put
on the label, and it was word for word what HHS put out. Is your
position that is inherently deceptive?
MS. KOHL: Yes, Your Honor, that�s the scientific judgment of the FDA
that there is not �
THE COURT: So HHS, FDA�s position is that HHS is making inherently
deceptive statements.
MS. KOHL: . . . These regulations that are being challenged apply only
to labeling on the dietary supplement.
THE COURT: But why does that matter? . . . Why is it inherently
deceptive in the label, and not in the brochure?
You can read Durk and Sandy�s own account of the case in this issue of
The Laissez Faire City Times.
Commodity Futures
The FDA is not the only government agency trying to regulate free speech
these days. Another one is the Commodity Futures Trading Commission
(CFTC).
As Declan McCullagh notes in a recent article, "CFTC's "Interpretation
Regarding Use of Electronic Media" requires anyone who wants to publish
opinions on commodity futures to ask for a license -- a tedious process
that includes fingerprinting, fees, audits, and a background check.
Publishing without registration is a federal felony" ("Bad Advice,"
Wired News, Jan. 14, 1999, found at
http://www.wired.com/news/news/politics/story/17350.html). The penalty
for violating the CFTC regulation is five years in prison and a $500,000
fine.
The Institute for Justice has taken the CFTC to court, arguing that
requiring a person to register as a "commodity trading advisor," even
though a person does not manage funds or offer personal advice, violates
the First Amendment.
Well, here�s some trading advice:
Buy Internet stocks and send all your profits to the CFTC.
The Internet guide Yahoo has about $200 million in sales, but 100
million in outstanding shares. That�s $2 of sales per share. Not profits
mind you, but only sales. On Monday, Jan. 11, Yahoo�s price per share
was $415. That gave it a market capitalization of $41.5 billion. Bigger
than Monsanto. Bigger than Boeing.
Unfortunately, by Friday, Jan. 22, the price of a Yahoo share had fallen
to $286. That gave the company a market value of only $28.6 billion,
down $13 billion in 9 trading days. Easy come, easy go. But, hey, maybe
this is a buying opportunity! And remember, the CFTC needs the money,
for its important work in saving the futures markets from free speech.
Speaking of freebies: Clinton gave his big ("State of the Union") speech
promising anti-impeachment goodies left and right. Including the idea of
putting Social Security funds in the stock market. Ho hum: so much for
the forecast vertical rise in the Dow. The Dow, which had gone up 14
points or so that Tuesday, dropped 19 points on Wednesday--the same day
Greenspan in his congressional testimony said putting SS funds in the
stock market was a bad idea. The Dow dropped another 70 points on
Thursday and 143 points on Friday. At the end of day Friday, the Dow
Jones future at the Chicago Board of Trade closed at 9165, while the
cash index closed around 9121. So that leaves our option already in the
money by approximately the amount we paid for it. On a futures basis,
the in-the-money amount is (9500-9165) x $10 = $3350. On a cash basis,
the in-the-money amount is (9500-9121) x $10 = $3790. The current market
value of the put is about $6000. But we�ll wait. Rome wasn�t destroyed
in a day.
Pope and Pepsi
The Pope was down in Mexico City on Saturday, warning about the evils of
capitalism. This was the same Pope whose picture could be found in bags
of Ruffles potato chips along with those of the Virgin of Guadelupe, the
patron saint of Mexico. One of the Pope�s corporate sponsors, PepsiCo,
owns Frito Lay, which in turn owns the Mexican company Sabritas, who
stuffed their bags of papas (potatoes) with pictures of the Papa (Pope)
and the Virgin. There are ten different pictures in the collection, and
for only an extra 20 pesos, Sabritas would sell you a frame for the
entire 10 picture collection.
So much for the Pope�s warnings about capitalism. Hypocrisy is always
purest when it starts at the top. John Paul II noted that pastors must
preach the Christian message to the rich and the powerful, not just the
poor. Presumably that means putting his and the Virgin�s picture into
the glove compartment of each new Mercedes-Benz�another corporate
sponsor of the Papa�s visit.
What with the Pope pushing Pepsi, on one hand, and Y2K, on the other,
there is no question in my mind the End Time is here. Accordingly, I
just finished a good apocalyptic novel, Lucifer�s Hammer, by Larry Niven
and Jerry Pournelle. Alberto Mingardi interviewed Pournelle for us last
year (http://www.zolatimes.com/v2.22/pournell.html). Lucifer�s Hammer
was written in 1977, but except for the minor detail in the plot
involving the Soviet Union, you wouldn�t know it. It could have been
written last year. It�s a great tale of survival in the face of
catastrophic destruction.
-30-
from The Laissez Faire City Times, Vol 3, No 4, Jan. 25, 1999
-----
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-----
Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
Omnia Bona Bonis,
All My Relations.
Adieu, Adios, Aloha.
Amen.
Roads End
Kris
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