UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALLIANCE FOR NATURAL HEALTH US,
et al.,
Plaintiffs,
v. Civil Action No. 09-1546 (BAH)
KATHLEEN SEBELIUS,
et al.,
Defendants.
MEMORANDUM OPINION
Dietary supplement designers and industry groups brought this lawsuit challenging a
decision of the Food and Drug Administration (“FDA”) to deny a petition for authorization of
certain qualified health claims regarding dietary supplements containing vitamin C and vitamin
E. The plaintiffs assert the FDA’s decision has violated their First Amendment rights. Invoking
both circuit and district court opinions that have addressed similar claims, plaintiffs seek a
declaratory judgment that the FDA’s final order denying the petition is invalid and a permanent
injunction enjoining the FDA from “taking any action that would preclude the Plaintiffs from
placing [their proposed] health claims on the labels and in the labeling of their dietary
supplements.” Complaint (“Compl.”) at 36. The plaintiffs’ motion for summary judgment and
the defendants’ cross-motion for summary judgment are now before the Court. For the reasons
explained below, the Court will grant in part and deny in part the parties’ motions and remand
certain claims to the FDA.
I. BACKGROUND
This case is the latest chapter in a lengthy saga of litigation concerning the FDA’s
regulation of the plaintiffs’ marketing claims about the purported health benefits of various
dietary supplements. Plaintiffs Durk Pearson and Sandy Shaw are scientists who design dietary
supplement formulations and license them to manufacturers and retailers. Compl. ¶ 9. The other
plaintiffs – the Coalition to End FDA and FTC Censorship and the Alliance for Natural Health
US – are dietary supplement industry organizations. Id. ¶¶ 8, 10. The defendants are Kathleen
Sebelius, in her official capacity as Secretary of the United States Department of Health and
Human Services, the United States Department of Health and Human Services, Margaret A.
Hamburg, M.D., in her official capacity as Commissioner of the United States Food and Drug
Administration, the Food and Drug Administration, and the United States of America
(collectively, the “FDA” or the “defendants”). Id. ¶ 11.
In this case, the plaintiffs challenge an FDA decision declining to approve several health
claims concerning the relationship between vitamins C and E and the risk for certain types of
cancer. Before turning to the particular facts of this case, however, it is necessary to review the
legal background underlying the parties’ dispute and the previous court rulings that have
addressed the issues involved here.1
A. Statutory and Regulatory Framework
A “dietary supplement” is a “product (other than tobacco) intended to supplement the diet
that bears or contains” one or more of certain dietary ingredients, including vitamins, minerals,
herbs or botanicals, and amino acids. 21 U.S.C. § 321(ff)(1). A dietary supplement is deemed to
be “food,” which is defined in part as “articles used for food or drink for man or other animals,”
id. § 321(f)(1), except when it meets the definition of a “drug,” which is defined in part as
“articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in
1
In the following two sections, the Court largely reiterates the district court’s effective summary of the relevant
background in Alliance for Natural Health US v. Sebelius, 714 F. Supp. 2d 48 (D.D.C. 2010), a case which is
substantially similar to this case, as discussed below, and which involved all of the same parties.
2
man or other animals.” Id. § 321(g)(1)(B). A “health claim” is “any claim made on the label or
in labeling of a food, including a dietary supplement, that expressly or by implication . . .
characterizes the relationship of any substance to a disease or health-related condition.” 21
C.F.R. § 101.14(a)(1); see also 21 U.S.C. § 343(r)(1)(A)-(B).
In 1990, Congress enacted the Nutrition Labeling and Education Act of 1990 (“NLEA”),
Pub.L. No. 101-535, 104 Stat. 2353 (1990) (codified as amended at 21 U.S.C. §§ 301, 321, 337,
343, 343-1, 345, 371), which amended the Food, Drug, and Cosmetic Act (“FDCA”) to provide
the FDA with authority to regulate health claims on food, including dietary supplements.
Pearson v. Shalala, 164 F.3d 650, 653 (D.C. Cir. 1999) (“Pearson I”). The NLEA created a
“safe harbor” from the “drug” designation for foods and dietary supplements labeled with health
claims. Alliance for Natural Health US v. Sebelius, 714 F. Supp. 2d 48, 51 (D.D.C. 2010)
(“Alliance I”); see also 21 U.S.C. § 343(r)(1). Under the NLEA, a manufacturer may make a
health claim on a food without FDA new drug approval if the FDA determines that “significant
scientific agreement,” based on the “totality of publicly available scientific evidence,” supports
the claim. 21 U.S.C. § 343(r)(3)(B)(i). For dietary supplement health claims, however,
Congress declined to establish an authorization process and instead left the creation of an
approval “procedure and standard” to the FDA. Id. § 343(r)(5)(D). The FDA subsequently
promulgated a regulation adopting the NLEA’s standard for food health claims (i.e., “significant
scientific agreement”) for dietary supplement health claims. 21 C.F.R. § 101.14(c) (“FDA will
promulgate regulations authorizing a health claim only when it determines, based on the totality
of publicly available scientific evidence . . . that there is significant scientific agreement . . . that
the claim is supported by such evidence.”). The FDA may consider a dietary supplement labeled
with an unauthorized health claim to be a misbranded food, 21 U.S.C. § 343(r)(1)(B); a
3
misbranded drug, id. § 352(f); and/or an unapproved new drug. Id. § 355(a). A dietary
supplement labeled with such a claim, or a claim that is false or misleading, is subject to seizure,
and the FDA may enjoin the product’s distribution or seek criminal penalties against its
manufacturer. Id. §§ 331(a), 332, 334, 352(a).
B. Pearson v. Shalala and Its Progeny
The plaintiffs here and other individuals and groups affiliated with the production, sale,
and use of dietary supplements have, for more than decade, sought judicial review of various
FDA decisions denying a variety of proposed health claims. In the first of these lawsuits
challenging the FDA’s rejection of the plaintiffs’ proposed claims on First Amendment grounds,
the D.C. Circuit invalidated the FDA’s then-existing approach to health claim review.
Pearson I, 164 F.3d at 655-61. Since then, the FDA has struggled to balance its concerns for
consumer protection and dietary supplement manufacturers’ First Amendment commercial
speech rights as defined by Pearson I. An abbreviated summary of these cases follows.
1. Pearson I
In 1995, a group of dietary supplement designers and others filed suit against the FDA
and other defendants under the First Amendment, challenging the FDA’s rejection of four health
claims that the manufacturers sought to include on certain dietary supplements.2 Pearson v.
Shalala, 14 F. Supp. 2d 10, 14 (D.D.C. 1998) (“First Pearson District Court Opinion”). The
claims characterized a relationship between dietary supplements and the risk of particular
diseases.3 Id. The FDA, applying the “significant scientific agreement” standard set forth in 21
2
Two of these plaintiffs, Pearson and Shaw, are plaintiffs in the instant case. The predecessor organization to the
Alliance for Natural Health US was also a plaintiff in Pearson I. See Compl. ¶ 8.
3
Pearson I concerned the FDA’s rejection of the following health claims: (1) “Consumption of antioxidant vitamins
may reduce the risk of certain kinds of cancers”; (2) “Consumption of fiber may reduce the risk of colorectal
cancer”; (3) “Consumption of omega-3 fatty acids may reduce the risk of coronary heart disease”; and (4) “. 8 mg of
4
C.F.R. § 101.14, determined that the evidence concerning the supplements “was inconclusive . . .
and thus failed to give rise to ‘significant scientific agreement.’” Pearson I, 164 F.3d at 653. The
FDA therefore declined to authorize the claims, finding them to be “inherently misleading and
thus entirely outside the protection of the First Amendment” as commercial speech. Id. at 655
(emphasis in original). The FDA also declined to consider the proposed alternative of
“permitting the claim[s] while requiring . . . corrective disclaimer[s],” arguing that even if the
proposed claims were only “potentially misleading,” it had no obligation under the First
Amendment to consider a “disclaimer approach,” as opposed to suppression, where the claims at
issue lacked significant scientific agreement. Id. at 654, 655, 657. The supplement designers
sued, arguing that the FDA’s “significant scientific agreement” standard was unconstitutionally
vague and was tantamount to a blanket ban on commercial speech in violation of their First
Amendment rights. First Pearson District Court Opinion, 14 F. Supp. 2d at 14.
After the district court denied the supplement designers’ motion for summary judgment,
the D.C. Circuit reversed. The Court of Appeals, applying the commercial speech test set forth
in Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447
U.S. 557 (1980), held that there was not a “‘reasonable fit’ between the government’s goals” of
protecting public health and preventing consumer fraud and “the means chosen to advance those
goals,” namely, the rejection of plaintiffs’ proposed health claims without consideration of
disclaimers. Pearson I, 164 F.3d at 656-58. Specifically, the Court held that under the First
Amendment commercial speech doctrine, there is a “preference for disclosure over outright
suppression” and for “less restrictive and more precise means” of regulating commercial speech.
Id. at 657-58 (internal quotation marks omitted). The FDA’s rejection of disclaimers without a
folic acid in a dietary supplement is more effective in reducing the risk of neural tube defects than a lower amount in
foods in common form.” Pearson I, 164 F.3d at 652.
5
showing that they were insufficient to meet the government’s goal of avoiding consumer
confusion demonstrated a disregard for a “less restrictive” means of speech regulation that
violated the First Amendment. The Court remanded the case to the district court with
instructions to remand it to the FDA to consider whether disclaimers could sufficiently prevent
consumer confusion and, if so, to specify the content of those disclaimers. Id. at 659. The Court
also held that the APA requires the FDA to “giv[e] some definitional content to the phrase
‘significant scientific agreement,’” because to “declare-without explanation-that a proposed
course of private action is not approved” is arbitrary and capricious. Id. at 660-61.
In requiring the FDA to consider the adequacy of possible disclaimers accompanying the
supplement designers’ proposed health claims, the Court recognized that “where evidence in
support of a claim is outweighed by evidence against the claim, the FDA could deem it incurable
by a disclaimer and ban it outright.” Id. at 659. Similarly, the Court “s[aw] no problem with the
FDA imposing an outright ban on a claim where evidence in support of the claim is qualitatively
weaker than evidence against the claim.” Id. at 659 n.10. However, the Court stated that the
Agency “must still meet its burden of justifying a restriction on speech,” and a “conclusory
assertion” as to misleadingness is inadequate. Id. (citing Ibanez v. Fla. Dep’t of Bus. & Prof’l
Regulation, 512 U.S. 136, 146 (1994) (“If the protections afforded commercial speech are to
retain their force, we cannot allow rote invocation of the words ‘potentially misleading’ to
supplant the [government’s] burden to demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.”) (citations and internal quotation
marks omitted)).
2. Pearson II
In late 2000, several of the plaintiffs from Pearson I and other dietary supplement
6
designers, sellers, and manufacturers filed a second lawsuit to challenge the FDA’s decision
prohibiting plaintiffs from including on their dietary supplements’ labels a health claim
concerning folic acid.4 Pearson v. Shalala, 130 F. Supp. 2d 105, 107 (D.D.C. 2001) (“Pearson
II”). After the decision in Pearson I, the FDA published a notice requesting submission of
scientific data concerning the four health claims at issue in that case, including the folic acid
claim. Id. at 110. The FDA also issued a guidance document, “Guidance for the Industry:
Significant Scientific Agreement in the Review of Health Claims for Conventional Foods and
Dietary Supplements.” Id. at 111. After reviewing the newly submitted scientific data and
applying the “significant scientific agreement standard” described in its guidance document and
modified by an October 6, 2000 rule, the FDA issued a decision stating that it would not
authorize the manufacturers’ folic acid claim, even with clarifying disclaimers, because it found
the claim to be inherently misleading. Id. The plaintiffs argued that the FDA’s decision
“fundamentally misread and misapplied the legal standard articulated” in Pearson I and violated
the First Amendment, the FDCA, and the APA. Id. at 107, 112. They sought a preliminary
injunction “enjoining the FDA from taking any action which would prevent Plaintiffs from using
their desired folic acid health claim.” Id. at 107.
The district court agreed with the plaintiffs, finding that the FDA “failed to comply with
the constitutional guidelines outlined in Pearson [I]” when it concluded, without explanation,
4
The folic acid health claim at issue in Pearson II was the same folic acid claim at issue in Pearson I, which stated
that “. 8 mg of folic acid in a dietary supplement is more effective in reducing the risk of neural tube defects than a
lower amount in foods in common form.” Pearson I, 164 F.3d at 652. With respect to this claim, the Court of
Appeals in Pearson I “strongly suggested, without declaring so explicitly” that the claim “was only ‘potentially
misleading,’ not ‘inherently misleading,’ and therefore the FDA’s refusal to authorize [the claim] (or to propose a
disclaimer to accompany the [c]laim) violated the First Amendment.” Pearson II, 130 F. Supp. 2d at 110; see also
Pearson I, 164 F.3d at 659 (“[I]t appears that credible evidence did support [the folic acid claim], and we suspect
that a clarifying disclaimer could be added to the effect that ‘The evidence in support of this claim is inconclusive.’”
(citation omitted)).
7
that the “weight of the evidence is against . . . the proposed [folic acid] claim” and that the claim
was therefore “inherently misleading” and not susceptible to correction by disclaimer. Id. at 112,
114. Although the court deferred to the FDA’s “method of dissecting” and reading the folic acid
claim per the APA, id. at 114 n. 24, it disagreed with the FDA’s weighing of the scientific data
and found “as a matter of law that [the folic acid claim] is not ‘inherently misleading.’” Id. In
coming to this conclusion, the court analyzed the scientific data regarding folic acid and
concluded that “[t]he mere absence of significant affirmative evidence in support of a particular
claim . . . does not translate into negative evidence ‘against’ it.” Id. at 115. Moreover, the court
held that the “question which must be answered under Pearson [I] is whether there is any
‘credible evidence’” in support of the claim. Id. at 114, 118 (quoting Pearson I, 164 F.3d at 658).
If so, unless that evidence is “outweighed by evidence against the claim” or is “qualitatively
weaker” than evidence against the claim, the claim “may not be absolutely prohibited.” Id. at
114-15.
Because the court found that there was credible evidence to support the folic acid claim,
it held that the FDA’s determination that the folic acid claim was “inherently misleading” and
could not be cured by disclaimers was “arbitrary and capricious” under the APA and that the
FDA had not “undertake[n] the necessary analysis required by Pearson [I].” Id. at 119. The
court granted the plaintiffs’ motion for a preliminary injunction and remanded the case to the
FDA to “draft one or more appropriately short, succinct, and accurate disclaimers.” Id. at 120.
3. Pearson III
After the preliminary injunction was entered in Pearson II, the FDA filed a motion for
reconsideration, arguing that the district court had “assign[ed] undue weight to a particular
clinical study and fail[ed] to consider the relevant scientific evidence in totality” and “creat[ed] a
8
legal standard which is inconsistent with [Pearson I ].” Pearson v. Thompson, 141 F. Supp. 2d
105, 108 (D.D.C. 2001) (“Pearson III”). The district court denied the motion, pointing to the
FDA’s “fail[ure] to fully and accurately describe the record evidence” and “speculative”
arguments. Id. at 109.
4. Whitaker v. Thompson
In June 2001, the plaintiffs filed another lawsuit to challenge the FDA’s decision not to
authorize an antioxidant claim that had been at issue in Pearson I.5 Whitaker, 248 F. Supp. 2d at
2, 7. The FDA, after reviewing the antioxidant-cancer relationship studies submitted at its
request subsequent to Pearson I, “found a lack of significant scientific agreement as to the
relationship between antioxidant vitamin intake and reduction in the risk of developing cancer.”
Id. at 7. The FDA concluded “that the weight of the scientific evidence against the relationship
[between cancer and antioxidant vitamins] was greater than the weight of evidence in favor of
the relationship” and, similar to its analysis of the folic acid claim in Pearson I and II, it
determined that the plaintiffs’ antioxidant claim was therefore “inherently misleading and c[ould
not] be made non-misleading with a disclaimer or other qualifying language.” Id.; see also
Pearson II, 130 F. Supp. 2d at 111-12. Plaintiffs argued that the FDA had again misapplied the
standard articulated in Pearson I in violation of the First Amendment, and the district court
agreed. Id. at 7-8.
Citing the Supreme Court’s then-recent decision in Thompson v. Western States Medical
Center, 535 U.S. 357 (2002), the court held that the FDA had not met its “burden . . . to prove
5
The plaintiffs in Whitaker were Julian M. Whitaker, M.D., Durk Pearson, Sandy Shaw, American Association for
Health Freedom, Wellness Lifestyles, Inc., and Pure Encapsulations, Inc. Whitaker, 248 F. Supp. 2d at 2 n.1. The
claim at issue was that “Consumption of antioxidant vitamins may reduce the risk of certain kinds of cancers.” Id. at
2; see also Pearson I, 164 F.3d at 652.
9
that its method of regulating speech [wa]s the least restrictive means of achieving its goals.”
Whitaker, 248 F. Supp. 2d at 9 (citing Western States, 535 U.S. at 371-73). Specifically, the court
held that the FDA had failed to present evidence that the proposed antioxidant claim, “if
accompanied by a disclaimer, would be deceptive or unlawful.” Id. In coming to its conclusion,
the court reviewed the FDA’s analysis of the claim in light of Pearson I, noting that “[t]he
deference due to an agency’s expert evaluation of scientific data does not negate ‘the duty of the
court to ensure that an agency . . . conduct a process of reasoned decision-making.” Id. at 11
(quoting K N Energy, Inc. v. F.E.R.C., 968 F.2d 1295, 1303 (D.C. Cir. 1992)). As such, the court
reviewed over 150 intervention and observational studies regarding the relationship between
antioxidant vitamins and cancer relied upon by the FDA in reaching its conclusions and found
that nearly one-third of the studies “supported” the antioxidant/cancer relationship. Id. The
court determined that the FDA had “failed to follow its own [Guidance] Report and give
appropriate weight” to these studies. Id. at 12. Furthermore, the court held that the FDA had
improperly emphasized and de-emphasized the import of certain studies, directly contrary to the
protocol it established in the Guidance Report. Id. In short, the court concluded that the “basic
finding” on which the FDA rested its denial of the proposed claim was “unreasonable because it
[wa]s not supported by an overall review of the available evidence or the FDA’s own Guidance
Report.” Id. at 13. The court then found that the circumstances under which the FDA might ban a
claim as misleading, described in Pearson I, were not present because (1) one-third of the
evidence examined supported the claim; and (2) the FDA failed to provide “empirical evidence
that an appropriate disclaimer would confuse customers and fail to correct for deceptiveness.” Id.
As a result, the court granted a preliminary injunction after concluding that the FDA’s decision
to suppress the claim did not “comport with the First Amendment’s clear preference for
10
disclosure over suppression of commercial speech.” Id. at 15, 17 (remanding case to FDA to
draft “short, succinct, and accurate alternative disclaimers”).
5. Alliance I
In Alliance for Natural Health US v. Sebelius, 714 F. Supp. 2d 48 (D.D.C. 2010)
(“Alliance I”), the same plaintiffs present in this action filed suit against the FDA challenging the
FDA’s denial of approval for certain health claims regarding the relationship between cancer risk
and selenium supplements. Id. at 57. The plaintiffs had proposed their selenium health claims as
“qualified” claims, which are health claims that include one or more disclaimers designed to
eliminate potentially misleading assertions.6 Id. at 56 n.13. The FDA created the category of
“qualified” claims in response to the D.C. Circuit’s holding in Pearson I. Id. In the time
between the decision in Whitaker and the filing of the lawsuit in Alliance I, the FDA had issued a
new guidance document governing the evaluation of health claims, including “qualified claims.”
See Guidance for Industry: Evidence-Based Review System for the Scientific Evaluation of
Health Claims (hereinafter “2009 Guidance Document”) at Administrative Record (“A.R.”)
2422-51. Applying its new “evidence-based review system” to the plaintiffs’ selenium claims,
the FDA banned certain of the plaintiffs’ claims entirely, concluding that there was no credible
scientific evidence supporting them, Alliance I, 714 F. Supp. 2d at 57-58, and the FDA exercised
its “enforcement discretion” to permit modified versions of other claims that the FDA found to
be supported by some credible evidence. Id.
6
The plaintiffs’ proposed qualified selenium health claims included: “Selenium may reduce the risk of certain
cancers. Scientific evidence supporting this claim is convincing but not yet conclusive.”; “Selenium may reduce the
risk of lung and respiratory tract cancers. Scientific evidence supporting this claim is convincing but not yet
conclusive.”; and “Selenium may reduce the risk of colon and digestive tract cancers. Scientific evidence supporting
this claim is convincing but not yet conclusive.” See Alliance I, 714 F. Supp. 2d at 57.
11
The plaintiffs objected both to the FDA’s decision to ban certain claims entirely as well
as to the FDA’s modified claims, contending that, in both instances, the FDA violated the
plaintiffs’ First Amendment rights. Id. The plaintiffs contended that the language of the
modified claims infringed their First Amendment rights by constructively suppressing their
claims “with the imposition of an onerous, value laden set of qualifications that only allow
Plaintiffs to propound a false, negatively value-laden, and inaccurate claim to the public.” Id.
The Alliance I court, in applying the relevant analysis dictated by the Central Hudson test
as elaborated by the D.C. Circuit in Pearson I, “conduct[ed] an independent review of the record
. . . without reliance on the [FDA’s] determinations as to constitutional questions.” Id. at 60. In
accordance with binding precedent, however, the court gave “deference to the [FDA’s]
interpretation of scientific information, provided such interpretation [was] reasoned and not
arbitrary or capricious.” Id.
With respect to the claims that the FDA banned entirely, the Alliance I court began by
noting that Pearson I suggested that when “‘credible evidence’ supports a claim, that claim may
not be absolutely prohibited.” Id. at 65 (citing Whitaker, 248 F. Supp. 2d at 10;
Pearson I, 164 F.3d at 658-59 (where “credible evidence” supported a proposed claim, “a
clarifying disclaimer could be added” to note that the evidence was inconclusive)). Since the
FDA had justified its decision to ban the plaintiffs’ claims on the grounds that the claims were
not supported by any credible evidence, the court reviewed the record to evaluate whether the
FDA’s process of determining that the claims were not supported by credible evidence had been
arbitrary and capricious. Alliance I, 714 F. Supp. 2d at 65. While the court found that many
aspects of the FDA’s determinations for each claim were not arbitrary and capricious, it also
12
found that certain aspects were arbitrary and capricious. Id. at 65-71. Accordingly, it remanded
the claims to the FDA for reevaluation and drafting of disclaimers as appropriate.7 Id. at 72.
With respect to the claims that the FDA permitted in modified form, the court agreed
with the plaintiffs that the FDA’s modified versions of the claims were “at odds with the
Supreme Court’s mandate that there be a ‘reasonable fit’ between the government’s goal and the
restrictions it imposes on commercial speech.” Id. at 71. The court found that “[t]he [FDA] has
not drafted a ‘precise disclaimer’ designed to qualify plaintiffs’ claim while adhering to the ‘First
Amendment preference for disclosure over suppression,’ as mandated . . . Rather, it has replaced
plaintiffs’ claim entirely. And the [FDA’s] ‘qualification’ effectively negates any relationship
between . . . cancer risk and selenium intake.” Id. (citation omitted). Accordingly, the court
remanded “for the purpose of reconsidering the scientific literature and drafting one or more
short, succinct, and accurate disclaimers in light of that review.” Id. at 72.
II. FACTUAL AND PROCEDURAL HISTORY
The instant case is quite similar to Alliance I, except that it concerns different proposed
health claims. On April 9, 2008, the plaintiffs submitted a petition to the FDA seeking approval
of 17 qualified health claims linking vitamins C and E with a reduction in the risk of certain
types of cancer.8 Pls.’ Mem. in Supp. of Mot. for Summ. J. (“Pls.’ Mem.”) at 1; A.R. at 2473-74.
In a decision dated June 19, 2009 (the “FDA Decision”), the FDA denied thirteen of the
7
In addition to the claims it disallowed as unsupported by credible evidence, the FDA also disallowed certain other
claims at issue in Alliance I because it deemed those claims “misleading on their face,” “independent of the
proffered scientific evidence” for failure to indicate the specific types of cancer allegedly affected by selenium.
Alliance I, 714 F. Supp. 2d at 63-64. The court found this decision to be inconsistent with Pearson I, especially in
light of the FDA’s admission that the plaintiffs’ proposed claims were “literally true . . . in that there is credible
evidence that selenium may reduce the risk of at least three cancers.” Id. Accordingly, the court remanded those
claims to the FDA “for the purpose of drafting one or more disclaimers or, alternatively, setting forth empirical
evidence that any disclaimer would fail to correct the claims’ purported misleadingness.” Id. at 65.
8
The petition was submitted by Julian M. Whitaker, M.D., the Coalition to End FDA and FTC Censorship, Durk
Pearson and Sandy Shaw, and Youngevity, Inc. A.R. at 2473.
13
proposed claims entirely and permitted four others to be made as qualified claims with modified
language.9 A.R. 2473-2526. The plaintiffs now challenge the FDA’s ruling on six of these
claims. Specifically, the proposed health claims at issue here are:
1. Vitamin C may reduce the risk of lung cancer. The scientific evidence
supporting this claim is convincing, but not conclusive.
2. Vitamin C may reduce the risk of colon cancer. The scientific evidence
supporting this claim is persuasive, but not conclusive.
3. Vitamin E may reduce the risk of lung cancer. The scientific evidence for this
claim is convincing, but not conclusive.
4. Vitamin E may reduce the risk of gastric cancer. The scientific evidence for
this claim is persuasive, but not conclusive.
5. Vitamin C may reduce the risk of gastric cancer. The scientific evidence
supporting this claim is persuasive, but not conclusive.
6. Vitamin E may reduce the risk of bladder cancer. The scientific evidence for
this claim is convincing, but not conclusive.
Compl. ¶ 26. The FDA Decision banned Claims 1, 2, 3, and 4 outright and permitted Claim 5
(Vitamin C-gastric cancer) and Claim 6 (Vitamin E-bladder cancer) to be made as qualified
claims with the following modified language:
5. One small study suggests that Vitamin E supplements may reduce the risk of
bladder cancer. However, two small studies showed no reduction of risk.
Based on these studies, FDA concludes that it is highly unlikely that vitamin
E supplements reduce the risk of bladder cancer.
9
Technically, the FDA does not “authorize” or “permit” qualified claims, but rather “exercises enforcement
discretion” to allow qualified claims that are supported by credible evidence and are not misleading. See Def.’s
Mem. at 1 n.1 (citing 65 Fed. Reg. 59856). The reason for this technical distinction is that under the NLEA and the
FDA’s regulations, “the evidence supporting a health claim [must] be presented to FDA for review before the claim
may appear in labeling,” and the FDA is required to make a finding of “significant scientific agreement” before
authorizing a health claim. 65 Fed. Reg. 59856. In other words, the FDA is not permitted by its statutory and
regulatory authority to authorize claims that lack significant scientific agreement. Pursuant to Pearson I, however,
the First Amendment precludes the FDA from prohibiting all claims that lack significant scientific agreement.
Accordingly, the FDA exercises “enforcement discretion” to permit qualified claims – i.e., claims that the FDA
cannot prohibit under the First Amendment, but that it also cannot technically authorize due to a of lack significant
scientific agreement. For simplicity’s sake, the Court will use the terms “allowed” or “permitted” in lieu of
“exercise enforcement discretion.” See Def.’s Mem. at 1 n.1.
14
6. One weak study and one study with inconsistent results suggest that vitamin
C supplements may reduce the risk of gastric cancer. Based on these studies,
FDA concludes that it is highly uncertain that vitamin C supplements reduce
the risk of gastric cancer.
Compl. ¶ 30; see also FDA Decision at A.R. 2510-11.
The plaintiffs brought this action on August 14, 2009 seeking a declaration that the FDA
Decision violates their First Amendment rights. Compl. ¶ 1. The plaintiffs contend that their
“qualified health claims . . . [are] supported by credible scientific evidence,” “[t]he scientific
evidence for the claims is not outweighed by scientific evidence against them, and the claims are not
inherently misleading.” Id. ¶ 3. Accordingly, they contend that the FDA Decision violates their
rights under the analysis set forth in Pearson I. Id.
The FDA filed the Administrative Record in this case on December 4, 2009. ECF No.
16. The plaintiffs filed a motion for summary judgment on December 30, 2009. ECF No. 17.
The FDA then filed a cross-motion for summary judgment on February 22, 2010. ECF No. 19.
The parties’ cross-motions for summary judgment are now before the Court.
III. ANALYSIS
A. Standard of Review
Pursuant to Federal Rule of Civil Procedure 56, the Court will grant a motion for
summary judgment “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law” based upon the pleadings, depositions,
and affidavits and other materials in the record. Fed. R. Civ. P. 56(a), (c); Tao v. Freeh, 27 F.3d
635, 638 (D.C. Cir. 1994). In this case, there are no disputed issues of fact and each party seeks
judgment as a matter of law based on the facts reflected in the administrative record.
Plaintiffs bring their claims under the First Amendment to the United States
15
Constitution.10 Compl. ¶¶ 58-63. “[A] Court’s review of constitutional challenges to agency
actions . . . is de novo.” Alliance I, 714 F. Supp. 2d at 59 (quoting Poett v. United States, 657 F.
Supp. 2d 230, 241 (D.D.C. 2009) (internal quotation marks omitted). The Court shall make an
independent assessment of constitutional claims when reviewing agency decision-making and
need not accord deference to the agency’s “pronouncement on a constitutional question.” Id.
(quoting J.J. Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041, 1044 (D.C. Cir. 2009)).
While the Court “is obligated to conduct an independent review of the record and must
do so without reliance on the [FDA’s] determinations as to constitutional questions,” it must also
give deference to an agency’s assessment of scientific or technical data within its area of
expertise. Id. at 60; see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1320 (D.C. Cir. 1998)
(agency “evaluations of scientific data within its area of expertise” are “entitled to a high level of
deference”) (internal quotations omitted).
“[D]eference to the [the FDA’s] interpretation of scientific information, provided such
interpretation is reasoned and not arbitrary or capricious, is consistent with the test set forth in
Pearson I.” Alliance I, 714 F. Supp. 2d at 60. “By instructing the FDA to employ less restrictive
means of regulating speech and to provide greater empirical support for its regulatory decisions,
the D.C. Circuit did not purport to tell the [FDA] how to assess scientific data. Rather, it
provided the [FDA] with guidelines for developing regulations once it had evaluated the
evidence before it.” 11 Id.
10
The Court “has the authority to examine and rule on any actions of a federal agency that allegedly violate the
Constitution,” apart from the power of review granted by the Administrative Procedure Act (“APA”). Alliance I,
714 F. Supp. 2d at 59 n.20 (quoting Rydeen v. Quigg, 748 F. Supp. 900, 905 (D.D.C. 1990), aff’d mem., 937 F.2d
623 (Fed. Cir. 1991)). However, the APA “also provides for the Courts to make an independent assessment of
constitutional issues,” and the role of the Court is the same “whether the plaintiff sues directly under the
Constitution or under [the APA].” Id. (citing Rydeen 748 F. Supp at 905 n.8); see also 5 U.S.C. § 706(2)(B).
11
The parties’ submissions, which were filed prior to the district court’s decision in Alliance I, vigorously debate the
appropriate standard of review. Alliance I resolved that debate in the manner adopted in this opinion: The Court
16
B. Legal Standard for Evaluating Commercial Speech Claims
Because the plaintiffs’ qualified vitamin C and vitamin E health claims are commercial
speech, the FDA’s refusal to authorize them must be evaluated under the analytical framework
established in Central Hudson, as elaborated upon by the D.C. Circuit in Pearson I and the
Supreme Court in Western States. Id. at 60-61; see also Pearson I, 164 F.3d at 655.
Central Hudson established a multi-step analysis of speech regulation. “[A]s a threshold
matter,” the Court must determine “whether the commercial speech [being regulated] concerns
unlawful activity or is misleading.” Western States, 535 U.S. at 367. If so, the speech is not
protected. Id. But if the speech is lawful and not misleading, or is only potentially misleading,
the Court must ask “whether the asserted governmental interest in regulating the speech is
substantial.” Id. (quoting Central Hudson, 447 U.S. at 566). If it is, the Court then ascertains
“whether the regulation [at issue] directly advances the governmental interest asserted” and,
finally, “whether [the regulation] is not more extensive than is necessary to serve that interest.”
Id. (quoting Central Hudson, 447 U.S. at 566). This last step requires the Court to evaluate
“whether the fit between the government’s ends and the means chosen to accomplish those ends
is . . . reasonable.” Pearson I, 164 F.3d at 656 (citation omitted).
The government has the burden of showing that the regulations on speech that it seeks to
impose are “not more extensive than is necessary to serve” the interests it attempts to advance.
Western States, 535 U.S. at 371 (quoting Central Hudson, 447 U.S. at 566). “[I]f the
Government c[an] achieve its interests in a manner that does not restrict [commercial] speech, or
that restricts less speech, the Government must do so.” Id. Therefore, the Court in Pearson I
noted that disclaimers are “constitutionally preferable to outright suppression,”
reviews an agency’s decisions on constitutional questions de novo, but defers to an agency’s interpretation of
scientific information unless it is irrational or arbitrary and capricious. Alliance I, 714 F. Supp. 2d at 59-60.
17
Pearson I, 164 F.3d at 657, and that generally, “the preferred remedy is more disclosure, rather
than less.” Id. (quoting Bates v. State Bar of Arizona, 433 U.S. 350, 376 (1977)); see also
Pearson II, 130 F. Supp. 2d at 113 (“[M]ore disclosure rather than less is the preferred approach,
so long as advertising is not inherently misleading.”). For this reason, the Court in Pearson I
concluded that “when government chooses a policy of suppression over disclosure-at least where
there is no showing that disclosure would not suffice to cure misleadingness-the government
disregards a far less restrictive means.” Pearson I, 164 F.3d at 658 (quotations omitted).
However, the Court in Pearson I recognized that “where evidence in support of a claim is
outweighed by evidence against the claim, the FDA could deem it incurable by a disclaimer and
ban it outright.” Id. at 659. Similarly, the Court “s[aw] no problem with the FDA imposing an
outright ban on a claim where evidence in support of the claim is qualitatively weaker than
evidence against the claim.” Id. at 659 n.10.
The plaintiffs contend that even where there is no credible evidence in support of claim, or
where the evidence in support of the claim is qualitatively inferior, the FDA still may not ban a
claim outright without proving with empirical evidence that a disclaimer cannot cure any
misleadingness. See Pls.’ Mem. at 21 (citing Whitaker, 248 F. Supp. 2d at 5, 10). The FDA
responds that there is no per se requirement to provide empirical evidence before disallowing a
qualified health claim that is not supported by credible evidence, and that to the extent that
Whitaker imposed such a requirement, it went beyond the standard articulated by the D.C.
Circuit in Pearson I. Defs.’ Cross-Mot. for Summ. J. and Opp’n to Pls.’ Mot. for Summ. J.
(“Defs.’ Mem.”) at 17-19, 18 n.13. Although the district court in Alliance I did not need to reach
this issue, it strongly suggested in dicta that Pearson I did not require a showing of empirical
evidence before the FDA could ban a claim that is unsupported by credible evidence. See
18
Alliance I, 714 F. Supp. 2d at 62 (“The court in Whitaker arguably went even further than
Pearson I, holding that ‘any complete ban of a claim would be approved only under narrow
circumstances, i.e., when there was almost no qualitative evidence in support of the claim and
where the government provided empirical evidence proving that the public would still be
deceived even if the claim was qualified by a disclaimer.’”) (quoting Whitaker, 248 F. Supp. 2d
at 11).
This Court agrees that Pearson I does not require the FDA to make an empirical showing
of the inefficacy of a disclaimer before prohibiting a claim that is not supported by credible
evidence. Regarding empirical evidence, the D.C. Circuit in Pearson I stated that “while we are
skeptical that the government could demonstrate with empirical evidence that disclaimers similar
to the ones we suggested above would bewilder consumers and fail to correct for deceptiveness,
we do not rule out that possibility.” 164 F.3d at 659-60. It is clear from the context of these
remarks that the Court was referring to the disclaimers it had proposed to remedy the plaintiffs’
potentially—although not inherently—misleading claims, which were based on credible, albeit
inconclusive, evidence. In Pearson I, the FDA had argued that any allowance of health claims
qualified by disclaimers would confuse consumers, see id. at 659, but the D.C. Circuit held that
“the FDA’s conclusory assertion” on this point failed to meet First Amendment burdens for
justifying speech restrictions. Id. Nonetheless, the D.C. Circuit left open the possibility that “the
government could demonstrate with empirical evidence that disclaimers similar to the ones
[suggested by the Court] would bewilder consumers.” Id. at 659-660. The D.C. Circuit did not
hold, however, that a showing of empirical evidence was required in situations where the FDA
could “reasonably determine” that a disclaimer would be insufficient because there was no
credible evidence in support of the claim. See id. at 659 (“For example, if the weight of the
19
evidence were against the hypothetical claim that ‘Consumption of Vitamin E reduces the risk of
Alzheimer’s disease,’ the agency might reasonably determine that adding a disclaimer such as
‘The FDA has determined that no evidence supports this claim’ would not suffice to mitigate the
claim’s misleadingness.”).
Contrary to the plaintiffs’ arguments, this Court does not agree that the D.C. Circuit
intended to suggest that, before banning an unsupported claim, the FDA would have to conduct
an empirical study on the efficacy of a disclaimer such as “The FDA has determined that no
evidence supports this claim.” Rather, the clear implication of the language of Pearson I is that
unsupported or very weakly supported claims may simply be banned outright. See id. at 659
n.10 (“[W]e see no problem with the FDA imposing an outright ban on a claim where evidence
in support of the claim is qualitatively weaker than evidence against the claim . . .”).
Presumably, such claims would qualify as unprotected commercial speech that can be prohibited
under the threshold step of the Central Hudson analysis. See Central Hudson, 447 U.S. at 563
(“The government may ban forms of [commercial] communication more likely to deceive the
public than to inform it.”). In contrast to unsupported claims, health claims that are supported by
some credible evidence, and which are therefore only potentially misleading, are protected
commercial speech and are subject to a different test under the Central Hudson analysis.
Pearson I teaches that empirical evidence of the inefficacy of using disclaimers is required for
the FDA to ban a health claim that is only potentially misleading – i.e., a claim that is based on
some credible evidence. See Pearson I, 164 F.3d 659 n.9 (explaining that the Court’s citation of
precedents related to the government’s evidentiary burden to produce empirical evidence were
directed at the direct advancement and reasonable fit prongs of the Central Hudson test). In the
20
absence of such empirical evidence, the FDA must rely on disclaimers to regulate a claim that is
only potentially misleading.
C. FDA’s Complete Ban on Certain of the Plaintiffs’ Claims
The FDA Decision in response to the plaintiffs’ petition banned plaintiffs from making
four of the claims at issue here. See FDA Decision at A.R. 2475-76 (noting the FDA’s
determination that there is “no credible scientific evidence supporting” the vitamin C-lung cancer
claim, the vitamin C-colon cancer claim, the vitamin E-lung cancer claim, and the vitamin E-
gastric cancer claim). Under Central Hudson and Pearson I, the FDA may refuse to consider
disclaimers for health claims (i.e., prohibit health claims completely) only if such claims are
inherently misleading, or are potentially misleading but the FDA has determined the claim to be
“incurable by a disclaimer.” Pearson I, 164 F.3d at 659-60 (suggesting that government might
completely ban health claim where “evidence in support of a claim is outweighed by evidence
against the claim” or where it “demonstrate[d] with empirical evidence that disclaimers . . .
would bewilder consumers and fail to correct for deceptiveness”).
Here, the FDA justified its decision to ban these four claims based on the agency’s
determination that “there is no credible scientific evidence” supporting the claims. FDA
Decision at A.R. 2475-76, 2503-2512. At a general level, such a decision appears consistent
with Pearson I, which allowed for the possibility that “where evidence in support of a claim is
outweighed by evidence against the claim, the FDA could deem it incurable by a disclaimer and
ban it outright.” 164 F. 3d at 659. However, the Court in Pearson I also suggested that when
“credible evidence” supports a claim, that claim may not be absolutely prohibited. Alliance I,
714 F. Supp. 2d at 65; see also Pearson I, 164 F. 3d at 658-59 (where “credible evidence”
supported a proposed claim, “a clarifying disclaimer could be added” to note that the evidence
21
was inconclusive). Therefore, as in Alliance I, this Court concludes that the proper inquiry here
is whether the FDA properly determined that there was no “credible evidence” supporting the
plaintiffs’ claims. See Alliance I, 714 F. Supp. 2d at 65. The Court “is not in the position, nor is
it the Court’s role, to independently assess whether the” scientific evidence evaluated by the
FDA constitutes “credible evidence” in support of plaintiffs’ claims. Id. at 66 n.25. Rather, the
Court must limit its consideration of this question to an assessment of whether the FDA’s
evaluation was inconsistent with its own standards, irrational, or arbitrary and capricious. Id.;
see also Whitaker, 248 F. Supp. 2d at 11 (reviewing FDA’s evaluation of scientific evidence to
ensure the FDA conducted a “process of reasoned decision-making” and that decision was not
arbitrary and capricious); Serono Labs., Inc., 158 F.3d at 1320 (agency evaluations of scientific
data within its area of expertise are entitled to a high level of deference).
1. The FDA’s Evidence-Based Review System
In its 2009 Guidance Document, the FDA states that it uses an “evidence-based review
system” to evaluate the strength of the evidence in support of a health claim. The process
involves a series of steps to assess scientific studies and other data, eliminate those from which no
conclusions about the substance/disease relationship can be drawn, rate the remaining studies for
methodological quality and evaluate the strength of the totality of scientific evidence by considering
study types, methodological quality, quantity of evidence for and against the claim (taking into account
the numbers of various types of studies and study sample sizes), relevance to the U.S. population or
target subgroup, replication of study results supporting the proposed claim, and overall consistency of
the evidence. After assessing the totality of the scientific evidence, FDA determines whether there is
[significant scientific agreement] to support an authorized health claim, or credible evidence to support
a qualified health claim.
2009 Guidance Document at A.R. 2426 (emphasis added). While the document does not
explicitly define “credible,” it does set forth threshold questions and principles that the FDA uses
to prioritize certain types of evidence over others and to identify evidence from which relevant
scientific conclusions may be drawn. For example, it states that “[r]andomized, controlled trials
offer the best assessment of a causal relationship between a substance and a disease.” Id. at A.R.
22
2428. By contrast, “research synthesis studies,” and “review articles” “do not provide sufficient
information on the individual studies reviewed” to determine critical elements of the studies and
whether those elements were flawed. Id. at A.R. 2432. Similarly, animal and in vitro studies,
while useful for background, “do not provide information from which scientific conclusions can
be drawn regarding a relationship between the substance and disease in humans.” Id. at A.R.
2432-33. The FDA also explains the questions it considers in determining whether scientific
conclusions can be drawn from an intervention or observational study, such as where the studies
were conducted (i.e., on what type of population); what type of information was collected; and
what type of biomarker of disease risk was measured.12 Id. at A.R. 2428-32. If the FDA
concludes that the elements of a study are flawed such that it is impossible to draw scientific
conclusions from the study, it eliminates that study from further review. Id. at A.R. 2433.
The Guidance Document’s framework for assessing the evidence in support of proposed
supplement health claims appears generally consistent with the requirements of Pearson I and
Central Hudson. It is designed to sort claims into three different tiers: (1) authorized health
claims, which are supported by “significant scientific agreement”; (2) qualified health claims,
which are supported by credible evidence short of significant scientific agreement; (3) and
claims which are not supported by credible evidence. Claims which are not supported by
credible evidence are misleading commercial speech and may be prohibited under the threshold
step of the Central Hudson test. See Central Hudson, 447 U.S. at 563;
Pearson I, 164 F.3d at 659-60. Claims which are supported by some credible, albeit
inconclusive, evidence are not to be prohibited, but rather “qualified” by the use of disclaimers
12
In an intervention study, subjects are provided with the substance being studied and the substance is typically
controlled for quality and quantity. 2009 Guidance Document at A.R. 2428. Observational studies measure
associations between the substance and the disease in a particular population living freely and lack the controlled
setting of an intervention study. Id. at 2429.
23
because they are only potentially misleading. Thus, the FDA’s Guidance Document gives effect
to a “less restrictive means” of regulating such claims, providing a “‘reasonable’ fit between the
government’s goals and the means chosen to advance those goals.”13
Pearson I, 164 F.3d at 656-58.
The plaintiffs contend that the 2009 Guidance Document has actually reinstituted a “de
facto pre-Pearson I standard where only conclusive scientific proof can survive the FDA’s claim
review.” In the plaintiffs’ view, the FDA has simply shifted the focus to the question of what
constitutes “credible” evidence and has adopted an overly restrictive standard of credibility.
Pls.’ Mem. at 12. While this concern is plausible, it is dispelled by the FDA’s actual application
of the Guidance Document. For example, in this case, the FDA Decision found four of the
plaintiffs’ claims to be supported by inconclusive yet credible evidence.14 FDA Decision at A.R.
2511. In the FDA Decision underlying Alliance I, the agency found the evidence supporting
three of the plaintiffs’ claims to be inconclusive yet credible. See Alliance I, 714 F. Supp. 2d at
58. Moreover, the factors that the FDA has applied in assessing credibility in this case appear
reasonable to the Court, as discussed below.15
The Court also disagrees with the plaintiffs’ argument that the FDA’s approach is not
13
In fact, the standard in the FDA’s Guidance Document arguably tilts further in the direction of disclosure than
required by Pearson I, insofar as Pearson I recognized that “where evidence in support of a claim is outweighed by
evidence against the claim, the FDA could deem it incurable by a disclaimer and ban it outright.” 164 F.3d at 659.
As noted above, however, Pearson I also suggested that where “credible evidence” supported a claim, the claim
could likely be cured by disclaimer. Id. at 658-59. Thus, since the precise standard required in Pearson I was not
entirely clear, the FDA has appropriately endorsed an approach that would favor more disclosure.
14
The validity of the modified language the FDA proposed for these claims is a separate issue, which is addressed
independently below.
15
The Court notes that, in reaching its decision here, it has not evaluated whether all of the FDA’s criteria for
assessing credibility in the Guidance Document are reasonable and not arbitrary and capricious. The Court has only
evaluated those criteria necessary for the Court’s decision. For example, the Complaint alleges that the “FDA
refused to consider 5 intervention studies because they involved foreign subjects,” Compl. ¶ 36, but the plaintiffs
have not argued that these studies supported any of their claims in particular and the Court did not need to reach the
issue of the viability of this alleged exclusion. See infra n.18 (explaining that the Court has only performed a
detailed analysis of the FDA’s treatment of studies that are directly and substantively addressed in the plaintiffs’
memoranda and statement of facts in connection with each claim).
24
based on a review of the totality of the scientific evidence because the FDA categorically
discounts certain types of studies based on their methodology or design. See Pls.’ Mem. at 12.
Rather, the FDA’s Guidance Document has articulated certain factors the agency will use in
evaluating the totality of the scientific evidence, including factors indicating certain types of
studies that do not provide credible evidence of health claims for supplement use in humans.
The application of predefined principles for identifying which studies can provide credible
evidence for a health claim does not suggest a failure to consider the totality of the evidence.16
2. Plaintiffs’ Vitamin C-Lung Cancer Claim
Using the procedure described in the Guidance Document, the FDA determined that there
was no credible evidence to support the plaintiffs’ vitamin C-lung cancer claim.17 The plaintiffs
contend that various studies that were discounted by the FDA do provide credible evidence
supporting their claim and discuss, in particular, five studies: the Neuhoser et al. 2003 study; the
Cho et al. 2006 study; the Feskanich et al. 2000 study; the Comstock et al. 1997 study; and the
16
One particular point of contention regarding credibility is the relevance of peer review of scientific studies.
Plaintiffs emphasize that “peer-reviewers considered the Plaintiffs’ studies to be reasonable and justified by the
evidence when each study was published in a peer-reviewed journal. . . . By definition, a peer-reviewed publication
has survived the scrutiny of experts in the same field.” Pls.’ Mem. at 31. The FDA does not dispute that peer review
provides some indicia of scientific validity, but rather logically points out that the plaintiffs cannot demonstrate that
the “the articles’ authors, the peer reviewers, or the publications believe that the studies support the health claims
that plaintiffs seek to use to promote their products to consumers.” Defs.’ Reply in Supp. of Cross-Mot. for Summ.
J. (“Defs.’ Reply”) at 16. The key question is whether a study provides credible evidence for the plaintiffs’ specific
claim, not whether it is scientifically sound in some more generic sense. Indeed, based on the review of the record
in this case, there are examples of studies cited by plaintiffs that actually appear to undercut the plaintiffs’ claims.
See, e.g., Cho et al. 2006, at A.R. at 752 (finding that “vitamin C intake combining food and supplemental sources
and supplemental vitamin C alone were each not associated with lung cancer risk,” but cited as evidence of
plaintiffs’ vitamin C-lung cancer claim, see Pls.’ Mem. at 33). Further, as the FDA also points out, articles may be
published for purely scientific purposes based on evidence that merely serves to generate hypotheses, debate, or to
identify areas for further research. See Defs.’ Reply at 16.
17
As in Alliance I, the Court considers only the first sentence of each of plaintiffs’ proposed claims, not the
suggested disclaimer in the second sentence (i.e., that “Vitamin C may reduce the risk of lung cancer,” not that the
“scientific evidence supporting this claim is convincing, but not conclusive.”). To the extent the FDA denied these
claims outright based on a lack of credible evidence, it did so on the basis of the claimed relationship between the
vitamins and the cancers, not because of the plaintiffs’ proposed disclaimers. See Alliance I, 714 F. Supp. 2d at 62
n.22; FDA Decision at A.R. 2476 (“FDA considers the data and information provided in the petition . . . to
determine whether the data and information could support a relationship between the substance and the disease or
health-related condition.”).
25
Gackowski et al. 2005 study.18 See Pls.’ Mem. at 32-33; Plaintiffs’ Statement of Material Facts
(“SMF”) ¶¶ 39-42.
The FDA states that it discounted the Comstock and Gackowski studies because they
used blood levels of vitamin C as a marker of vitamin C intake. FDA Decision at A.R. 2495-96,
2526. According to the FDA, “[s]ince circulating vitamin C or vitamin E levels and intake levels
are poorly correlated, and many factors (e.g., [body mass index], serum lipid level, smoking) can
alter the serum or plasma vitamin C or vitamin E concentration at a given point in time, scientific
conclusions cannot be drawn from studies that used vitamin C or E levels as a biomarker of
intake.” Id. at A.R. 2496. In support of this conclusion, the FDA cited numerous different
studies regarding the correlation between vitamin C and vitamin E intake and serum or plasma
levels of the vitamins. Id. at A.R. 2495-96. The 2009 Guidance Document also states that
“[t]here should be evidence to demonstrate a strong correlation between the intake level of the
substance and the level of the substance . . . in the biological sample . . . If the correlation is
weak . . ., then scientific conclusions cannot be drawn from studies that used that biological
sample as a biomarker of intake.” 2009 Guidance Document at A.R. 2437. Since the FDA has
provided a reasoned explanation for the exclusion of these studies and the explanation is
consistent with the FDA’s Guidance Document, the FDA’s decision that these studies do not
constitute credible evidence of the claim must be upheld.
The FDA discounted the Cho study because it was a “meta-analysis” of studies reflected
in a review article. FDA Decision at 2523. As explained in the 2009 Guidance Document,
18
While the plaintiffs note that they submitted other studies as well, the Court assumes that the particular studies
that are directly and substantively addressed in detail in the plaintiffs’ memoranda and statement of facts in
connection with each claim provide what the plaintiffs view as the strongest evidence in support of that claim.
Given the voluminous scientific record before the Court and the limited nature of the Court’s ability to review
highly technical decisions grounded in an agency’s scientific expertise, the Court will only perform a detailed
analysis of the FDA’s treatment of those studies that the plaintiffs’ submissions have addressed detail in connection
with each claim. See Alliance I, 714 F. Supp. 2d at 66 n.25 (adopting the same approach).
26
“research synthesis studies,” and “review articles,” including “most meta-analyses,” “do not
provide sufficient information on the individual studies reviewed” to determine critical elements
of the studies and whether those elements were flawed. 2009 Guidance Document at A.R. 2432.
The Guidance Document makes an exception for meta-analyses “that review[] all the publicly
available studies on the substance/disease relationship.” Id. Based on the Court’s review of the
Cho article, the FDA’s decision to exclude this article as a meta-analysis was not arbitrary and
capricious. See Alliance I, 714 F. Supp. 2d at 67. The article pooled information from only eight
studies and actually concluded that “this pooled analysis of 8 prospective studies does not
suggest that intakes of vitamins A, C, E, and folate reduce the risk of lung cancer.” Cho at A.R.
752. Indeed, the study apparently found that “supplemental vitamin C alone [was] . . . not
associated with lung cancer risk.” Id. at 751.
Finally, the FDA discounted the Feskanich and Neuhoser studies because they are
observational studies that estimated vitamin intake “from dietary sources intake” – i.e., from the
foods eaten by the study’s subjects. FDA Decision at A.R. 2525, 2493-95. The FDA Decision
contains an extensive discussion of why the FDA will not rely on food intake studies as evidence
of a particular nutrient’s effect on a disease. Id. at 2493-95. The reasons include numerous
potential weaknesses in the methods for accurately measuring an individual’s food intake, which
are usually based on self-reporting; variability in the nutrient content of foods based on different
farming, production, cooking, and storage conditions; difficulty in isolating the effects of various
nutrient components of foods; and evidence of previous cases in which dietary intake studies had
indicated that a food nutrient may have a beneficial effect on a disease, while subsequent
intervention studies showed that dietary supplements containing that nutrient do not confer any
benefit or actually increase risk of the disease. Id. The 2009 Guidance Document also notes
27
these concerns and concludes that “scientific conclusions from observational studies cannot be
drawn about a relationship between a food component and a disease.” 2009 Guidance Document
at A.R. 2438-39.
The plaintiffs object to the FDA’s exclusion of observational studies based on food intake
primarily because, according to the plaintiffs, the D.C. Circuit in Pearson I held that disclaimers
were sufficient to cure vitamin supplement claims that were based upon food intake studies. See
Pls.’ Mem. at 28. In Pearson I, the FDA had determined that the plaintiffs’ claims “lack
significant scientific agreement because existing research had examined only the relationship
between consumption of foods containing these components and the risk of these diseases.” 164
F.3d at 658. The Court noted that “[t]he FDA logically determined that the specific effect of the
component of the food constituting the dietary supplement could not be determined with
certainty,” yet concluded that “certainly this concern could be accommodated . . . for example,
by adding a prominent disclaimer to the label along the following lines: ‘The evidence is
inconclusive because existing studies have been performed with foods containing antioxidant
vitamins, and the effect of those foods on reducing the risk of cancer may result from other
components in those foods.’” Id.
The FDA directly addressed the D.C. Circuit’s comments on this issue in its decision.
FDA Decision at A.R. 2494. In short, the FDA contends that observational studies based on
food intake do not provide “inconclusive” evidence of single nutrient supplement claims; rather,
they simply do not support valid scientific conclusions about single nutrient supplements. Id.
The reason for the FDA’s conclusion is not only because of the difficulties in disentangling the
effects of various food components, which was the issue addressed by the D.C. Circuit in
Pearson I, but also because of all the other factors discussed above, particularly the
28
understanding that nutrients in food do not necessarily have the same beneficial effect in
supplement form, and that some studies have actually demonstrated increased disease risk from
supplements predicted to be beneficial based on food studies. Id. As evidence of this
understanding, which the FDA contends has emerged since the decision in Pearson I, the FDA
points to a 2005 review article published in the Journal of the American Medical Association.
Id.; see also Alice Lichtenstein and Robert Russell, Essential Nutrients: Food or Supplements?,
294 J. AM. MED. ASSOC. 351-58 (2005), at A.R. 3315-22.19
This Court is persuaded that the FDA has provided a reasonable basis for determining
that observational studies based on food intake do not provide credible scientific evidence of the
disease risk effects of single nutrient supplements. To the extent that the FDA’s concern about
food studies is premised on the difficulty in isolating the effects of specific nutrient components
of food, the D.C. Circuit did conclude that “this concern could be accommodated” by disclaimer.
Pearson I, 164 F.3d at 658. Accordingly, that concern alone would likely be insufficient to
justify prohibiting a claim. As noted above, however, the FDA has identified several other
compelling concerns about the validity of drawing scientific conclusions about single nutrient
supplements from observational food studies. It is also significant that the D.C. Circuit’s
comments regarding food studies were made in the context of reviewing an FDA decision made
19
The plaintiffs object to the FDA’s citation of the Lichtenstein and Russell review article since the 2009 Guidance
Document establishes that review articles per se provide insufficient evidence to support a health claim. See Pls.’
Mem. in Reply and Opp’n to Defs.’ Opp’n to Pls.’ Mot. for Summ. J. and Cross-Mot. for Summ J. at 27. The 2009
Guidance Document states, however, the FDA may use review articles “as background” and to identify individual
studies for consideration. 2009 Guidance Document at A.R. 2432. Here, in addition to citing the Lichtenstein and
Russell review article, the FDA has also pointed to individual studies to support its concern about the discrepancies
between food intake studies and intervention studies. For example, the Guidance Document states that “previous
observational studies reported an association between fruits and vegetables high in beta-carotene and a reduced risk
of lung cancer (Peto et al., 1981). However, subsequent intervention studies . . . demonstrated that beta-carotene
supplements increase the risk of lung cancer in smokers and asbestos-exposed workers, respectively (The Alpha-
Tocopherol and Beta Carotene Cancer Prevention Study Group, 1994; Omenn et al. 1996).” Id. at 2438-39; see also
FDA Decision at A.R. 2494 (citing the same studies).
29
under a different standard that the FDA had not articulated well prior to its application. See
Pearson I, 164 F.3d at 660-61. Here, the question is the validity of the FDA’s criteria for
considering evidence as “credible” scientific support for a claim. The FDA’s criteria here were
articulated in advance of their application, in the 2009 Guidance Document, and they appear to
have a rational, scientific basis. Ultimately, this issue comes down to a judgment about the
scientific validity of drawing certain conclusions from a particular methodology. In these
circumstances, the Court will not attempt to replace the FDA’s scientific judgment with its own.
Accordingly, the FDA’s rejection of the studies cited by the plaintiffs as credible
evidence of the claim that “Vitamin C may reduce the risk of lung cancer” was consistent with
the FDA’s established evaluation criteria and rationally justifiable based on the nature of the
studies.
3. Plaintiffs’ Vitamin C-Colon Cancer Claim
The FDA also determined the plaintiffs’ vitamin C-colon cancer claim was not supported
by credible evidence. Plaintiffs contend that the following five studies support their claim:
Cahill et al. 1993, Bostick et al. 1993, Satia-Abouta et al. 2003, Chiu et al. 2003, and Olsen et al.
1994. Pls.’ Mem. at 34-35; SMF ¶¶ 43-47.
The FDA did not credit the Cahill study as credible evidence because it measured effects
that are not considered “validated surrogate endpoints of cancer risk” for colon cancer. FDA
Decision at A.R. 2490, 2523. In other words, the study measured effects that are not proven
indicators of the disease. According to the FDA, the only “validated endpoints” to use in
evaluating risk reduction claims for colon cancer are (1) actual cases of colon cancer or (2)
“recurrent adenomatous colorectal polyps,” a medical condition involving colorectal polyps
which are non-cancerous but which have proven to be correlated with colon cancer risk. FDA
30
Decision at A.R. 2484, 2490. Put another way, a study that measures effects other than the
incidence of colon cancer or adenomatous colorectal polyps (or other proven indicators of colon
cancer risk) in the study population would not generally provide credible evidence for colon
cancer risk claims. The Cahill study measured the effect of vitamin C supplementation on colon
“crypt cell proliferation” in a group of ten patients that had existing colorectal polyps. Defs.’
Mem. at 29 (citing Cahill at A.R. 2734-38). The study found that vitamin C supplements
reduced the rate of crypt cell proliferation. Cahill at A.R. 2738. While higher rates of crypt cell
proliferation are observed in patients with colon cancer or polyps, the study did not show that
these higher rates of cell proliferation are themselves a cause of cancer or that reducing them
affects cancer risk. Id. at 2737-38. While the Cahill authors hypothesized that the observed
effect on cell proliferation in patients with colon polyps “may reduce the risk of progression” to
cancer or recurrent adenomatous colon polyps, this proposition does not itself appear to have
been validated by the study. See id. Under these circumstances, the Court finds that the FDA’s
decision to exclude this study was not unreasonable. In addition, the FDA’s exclusion of the
Cahill study also appears consistent with its Guidance Document. See 2009 Guidance Document
at A.R. 2436 (“Scientific conclusions cannot be drawn about the relationship between the
substance and risk of disease if the risk biomarker is not a surrogate endpoint.”); see also id. at
A.R. 2433 (noting “adenomatous colon polyps” as a valid surrogate endpoint for colon cancer).
Accordingly, the FDA’s decision to exclude the Cahill study was not arbitrary and capricious.
The FDA also excluded the other four studies cited by the plaintiffs because those
observational studies estimated vitamin intake from dietary sources or from a combination of
dietary sources and multivitamin supplements, a factor which provides a valid basis for
exclusion, as discussed above. See Defs.’ Mem. at 30; FDA Decision at A.R. 2525 (excluding
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Satia-Abouta et al. 2003, Bostick et al. 1993, Olsen et al. 1994, and Chiu et al. 2003).
Accordingly, the FDA’s rejection of the studies cited by the plaintiffs’ as credible
evidence of the claim that “Vitamin C may reduce the risk of colon cancer” was consistent with
the FDA’s established evaluation criteria and rationally justifiable based on the nature of the
studies.
4. Plaintiffs’ Vitamin E-Lung Cancer Claim
The plaintiffs point to four studies in particular as evidence of their claim that vitamin E
may reduce the risk for lung cancer: Woodson et al. 1999, Comstock et al. 1997, Knekt et al.
1991, and Lonn et al. 2005. Pls.’ Mem. at 38-39; SMF ¶¶ 62-66.20 The FDA discounted the
Woodson et al. 1999 study and the Comstock et al. 1997 study because they relied on blood
serum or plasma vitamin levels as a measure of vitamin E intake, which is a valid basis for
exclusion, as discussed above. FDA Decision at A.R. 2526. The FDA excluded the Knekt et al.
1991 study because it estimated vitamin intake from dietary sources, which is also a valid basis
for exclusion, as discussed above. Id. at 2526.
The Lonn et al. 2005 study was an intervention study designed to “[t]o evaluate whether
long-term supplementation with vitamin E decreases the risk of cancer, cancer death, and major
cardiovascular events.” Lonn at A.R. 3346. The study was not specific to lung cancer and
assessment of site-specific cancers was subsidiary. FDA Decision at A.R. 2487. The FDA
discounted the study because it did not pre-screen subjects for specific cancers prior to the study,
which the FDA contends may have resulted in biased incidences of lung cancer between the
vitamin E group and the placebo group. Id. In any event, the main finding of the study, as stated
20
Plaintiffs’ memorandum and statement of facts asserts that they submitted 17 studies in support of this claim, but
then lists, in summary form, more than 17 studies. See SMF ¶ 62. In any event, as noted above, the Court has only
conducted a detailed review of the FDA’s treatment of the studies that are specifically discussed in the plaintiffs’
memorandum and statement of facts.
32
by the authors, was “the lack of benefit for vitamin E in preventing cancer or major
cardiovascular events after a prolonged period of treatment and observation.” Lonn at A.R.
3351. In addition, the authors also concluded that “our study raises concern about an increased
risk of heart failure related to vitamin E.” Id. While the study authors did observe a decreased
incidence of lung cancer in the vitamin E group, when the authors applied the relevant “stringent
statistical rules,” the difference in lung cancer rates did not rise to the predefined level of
statistical significance and the authors themselves concluded that “the differences [in lung cancer
outcomes] observed in our study are likely a chance finding.” Id. In short, the study found no
statistically significant health benefits from vitamin E supplements. Thus, the study’s results do
not appear to support the plaintiffs’ claim, while the FDA’s concerns about potential for bias in
the distribution of lung cancer cases in the study appear consistent with the authors’ conclusions
that any difference in lung cancer rates was likely due to chance. Accordingly, the FDA’s
decision that this study and the other cited studies do not constitute credible evidence for the
plaintiffs’ claim was not arbitrary and capricious.
5. Plaintiffs’ Vitamin E-Gastric Cancer Claim
Plaintiffs point to five studies in particular to support their claim that vitamin E may
reduce the risk of gastric cancer: Virtamo et al. 2000; You et al. 2000; Lopez-Carillo et al. 1999;
Jenab et al. 2006b; and Buiatti et al. 1990. See Pls.’ Mem. at 37; SMF ¶¶ 57-61.
The FDA validly discounted the Buatti and Lopez-Carillo studies because they estimated
vitamin E intake based on food consumption. FDA Decision at A.R. 2525. The FDA also validly
discounted the You and Jenab studies because they relied on serum or plasma levels of vitamin E
as an indicator of intake. Id. at 2526. Finally, the FDA discounted the Virtamo article because,
similar to the Lonn et al. 2005 study discussed above, the underlying trial was not designed to
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study gastric cancer risk and no pre-screening for gastric cancer was performed. Id. at 2524.
Indeed, as the FDA points out in its brief, the Virtamo article does not relate to the effect of
vitamin E on gastric cancer. Defs.’ Mem. at 41 n.32 (citing Virtamo at A.R. 3613-19). Rather, it
relates to the effect of vitamin E on urinary tract cancer, and the authors concluded that vitamin
E does not reduce the risk of urinary tract cancer.21 Id. These exclusions were not arbitrary and
capricious. Accordingly, the Court defers to the FDA’s determination that the plaintiffs’ claim
lacks credible supporting evidence.
D. FDA’s Qualification of Certain of the Plaintiffs’ Claims
In its decision, the FDA found that four of the qualified claims proposed by the plaintiffs
were supported by some credible scientific evidence under the procedures for evidentiary
analysis spelled out in the Guidance Document. FDA Decision at A.R. 2511-12. However, the
FDA found that it needed to revise the wording of the plaintiffs’ qualified claims “so as to not
mislead consumers.” Id. Plaintiffs challenge the FDA’s rewording of two of their qualified
claims here – the vitamin C-gastric cancer claim and the vitamin E-bladder cancer claim. As
noted above, the FDA reworded these claims to read as follows:
Vitamin E-Bladder Cancer Claim:
One small study suggests that Vitamin E supplements may reduce the risk of bladder
cancer. However, two small studies showed no reduction of risk. Based on these
studies, FDA concludes that it is highly unlikely that vitamin E supplements reduce
the risk of bladder cancer.
Vitamin C-Gastric Cancer Claim:
One weak study and one study with inconsistent results suggest that vitamin C
21
Plaintiffs appear to suggest that the study did pre-screen for cancers by citing a portion of the study explaining
that “[p]articipants had three follow-up visits annually, during which information regarding illnesses, symptoms, and
smoking were collected . . .,” see Pls.’ Mem. at 37-38 n.35 (citing Virtamo at A.R. 3614), but this citation regarding
“follow-up visits” appears to refer to screening after the study was underway. In any event, as noted above, the
study does not appear to have made findings with respect to gastric cancer.
34
supplements may reduce the risk of gastric cancer. Based on these studies, FDA
concludes that it is highly uncertain that vitamin C supplements reduce the risk of
gastric cancer.
As in Alliance I, “[t]he Court agrees with plaintiffs’ contention that the FDA’s proposed
claim is at odds with the Supreme Court’s mandate that there be a ‘reasonable fit’ between the
government’s goal and the restrictions it imposes on commercial speech.” Alliance I, 714 F.
Supp. 2d at 71 (citing Pearson I, 164 F.3d at 656 n.5). Indeed, these disclaimers fail for the
same reasons the disclaimers in Alliance I failed. The FDA has “not drafted [] ‘precise
disclaimer[s]’ designed to qualify plaintiffs’ claim[s] while adhering to the ‘First Amendment
preference for disclosure over suppression,’ as mandated.” Id. “Rather, it has replaced plaintiffs’
claim[s] entirely.” Id. Further, the FDA’s “qualification” effectively negates any relationship
between cancer risk and vitamin intake. See id. The FDA’s rewording makes it difficult to tell
what the original health claims are and appears to disavow the FDA’s own conclusions that those
claims are supported by credible evidence. “[T]he FDA has completely eviscerated plaintiffs’
claim[s], with no explanation as to why a less restrictive approach would not be effective.” Id.
Where the evidence supporting a claim is inconclusive, the First Amendment permits the claim
to be made; the FDA cannot require a disclaimer that simply swallows the claim.22 “In short, the
FDA’s replacement of plaintiffs’ claim[s] with different and contradictory language is
inconsistent with the spirit, if not the letter, of Pearson I.” Id. at 72. Accordingly, the Court will
22
As noted above, in the plaintiffs’ proposed claims, the first sentence characterized a possible substance-disease
relationship, which is what the FDA evaluated for evidentiary support. The second sentence was a proposed
disclaimer regarding the strength or nature of the evidentiary support for that substance-disease relationship. See
supra n.17. In drafting disclaimers for a health claim regarding a substance-disease relationship supported by some
credible evidence, the FDA’s attention would ordinarily be directed primarily toward the latter characterization.
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remand the vitamin C-gastric cancer and vitamin E-bladder cancer claims to the FDA for the
purpose of drafting one or more precise disclaimers.23 Id.
IV. CONCLUSION
For the reasons discussed above, the parties’ motions for summary judgement are each
granted in part and denied in part. The vitamin C-gastric cancer and vitamin E-bladder cancer
claims are remanded to the FDA for further action consistent with this Memorandum Opinion
and the other relief sought by the plaintiffs is denied.
DATED: April 13, 2011 /s/Beryl A. Howell
BERYL A. HOWELL
United States District Judge
23
It is not the Court’s role to draft disclaimers in the first instance, see Pearson I, 164 F.3d at 659, but the Court
refers the FDA to examples of disclaimers proposed by the D.C. Circuit in Pearson I to serve as relevant models
of the type of disclaimers that may be appropriate. See id. at 658-60. In addition, since the Court remands this
claim to the FDA on the basis of the FDA’s complete substitution of plaintiffs’ proposed claim, it did not need to
review all of the studies excluded or relied on by the FDA in evaluating plaintiffs’ claims. See Alliance I, 714 F.
Supp. 2d at 72 n.30.
36