Pearson Claims: One Back to Court, One Set with Disclaimer

WASHINGTON--When the Food and Drug Administration (FDA) struck down the health claim linking antioxidants benefiting cancer, the plaintiffs behind the claim did not immediately offer a comment, instead taking time to digest this information. Now, a month after completing their preliminary assessment of FDA's ruling, the plaintiffs in Pearson v. Shalala said they would file suit against the agency within the next 60 days.

The plaintiffs challenge that FDA failed to comply with the First Amendment, as well as the U.S. Court of Appeals and District Court decisions that required FDA to rely on disclaimers as a less restrictive alternative to outright suppression of proffered health claims. In addition, the plaintiffs allege that FDA evaluated the effects antioxidants as a cancer treatment rather than as a preventive measure.

Additionally, the firm representing the plaintiffs, Emord & Associates P.C. (www.emord.com), announced that FDA has decided against filing an appeal that would revoke its begrudgingly given folic acid disclaimer. Emord & Associates and the Justice Department will jointly file a Motion to Dismiss in order to protect the future use of this claim. "In the end, the disclaimer FDA now allows is the very same kind of disclaimer that the Pearson plaintiffs said that they would [have accepted] eight years ago," the law firm stated in its press release.