Do Three Interlocking Events Signal the End of Health Freedom?

•  November 1st, Dr. Christine Taylor announced the launch of the new Joint FAO/WHO (Food and Agriculture Org / World Health Organization) framework project. It will build a new overarching international model for the evaluation of safe upper levels of nutrients and maybe even model one or two vitamins or minerals all the way through to a conclusion on safe upper levels.

• November 2nd, the Nutrition and Foods for Special Dietary Uses Committee of the Codex Alimentarius (Food Standards) Commission reached agreement on the final language for the guideline on vitamins and minerals as food supplements paving the way for its adoption in July 2005 in Rome.

• November 10th, the General Principles Committee of the Codex Alimentarius Commission agreed to recommend deletion of the notification and acceptance procedures in the Codex Procedural Manual as “obsolete” and “irrelevant”.

Dr. Taylor made the announcement. The official FAO/WHO project to create, for the first time, an overarching framework for the establishment of safe upper levels for nutrients has been launched.
Dr. Christine Taylor, of the FDA, now on special assignment to the World Health Organization, announced at Codex NFSDU (Nutrition and Foods for Special Dietary Uses) the formal launch of the Joint FAO/WHO Development of a Scientific Collaboration to Create a Framework for Risk Assessment of Nutrients and Related Substances on day one of the meeting in Bonn. The project represents the first major collaboration at an international level to create an overarching framework through which the upper levels for vitamins and mineral and “related substances” can be formally established.(1) “We should have communality and overarching principles where possible,” explained Dr. Wim Van Eck, senior nutrition adviser to WHO’s Food Safety Department, to the Law Loft at the CCGP (Codex Committee on General Principles) meeting in Paris.
The launch of this project is terribly important to the fate of health freedom and nutritional therapies for several reasons. One reason is that under paragraph 5.1 of the Sanitary Phytosanitary Agreement (SPS)(2), member nations of the WTO are required to take into account risk assessment techniques developed by the relevant international organizations in establishing their own food safety measures to protect human health. Up to now, there have been few international risk assessment techniques that bear directly on the use of vitamin, mineral and other nutritional supplements.
What is happening now, both inside and along side the Codex Alimentarius Commission, is a rush to create such international risk assessment techniques. This exercise is not academic. Ever since the WTO’s appellate panel’s decision in the sardine case brought against the European Union by Peru, international law experts have seen the relevance and applicability of the standard setting activities at Codex and at other relevant international organizations in a new light. What before the sardines case was seen as unlikely to be binding on national authorities, is now seen as either absolutely binding or very likely to be binding on national authorities. Before the sardines case, many authorities thought that technical regulations promulgated by Codex (and other international standard setting organizations) that fell within the jurisdiction of the TBT (Technical Barriers to Trade Agreement), were unlikely to have binding impact on national regulators. A kind of “SPS, you are bound, TBT, you are not bound,” mentality developed.
Since in actual practice it could be very, very difficult to tell which measures fell under which agreement, regulators functioned at Codex in a kind of fog of misunderstanding believing that what they were writing was never going to bind their own countries.
Today that picture has changed dramatically. “The TBT is mandating use of international standards when they are appropriate,” explained international trade law professor Dr. James Mathis to an audience of Codex attendees at a Consumers International/Ford Foundation funded seminar in Paris on November 9th.
So now that we see the importance of it all, the question naturally arises: What direction have the FAO and WHO taken in their framework for risk assessment for nutrients project?
The answer is grim and short. The worst possible direction. The project design as outlined so far includes massive amounts of guesswork (all guesses to be in the wrong direction, that is, away from the scientific principle that higher levels of nutrient intake can prevent chronic disease); use of intake assumptions based on estimates of nutrient values obtained from ordinary foods couple with estimates of high-end supplementation intake; and final ULS (upper level settings) based on protection of the most sensitive consumer from the risks, both real and imagined, of over supplementation.

Codex Nutrition and Foods for Special Dietary Uses Committee (NFSDU) reached  final agreement on the last key paragraph of the Draft Guidelines for Vitamin and Mineral Food Supplements on November2nd, paving the way for final adoption at the Codex Alimentarius Commission meeting in Rome in July 2005.
Last year at CCNFSDU, the USA and the EU staked out seemingly irreconcilable positions on a key paragraph (3.2.2) within the proposed draft guidelines for vitamin and mineral supplements. Their dispute centered around the content of vitamins and minerals, that is, upper limits/maximum amounts, of vitamins and minerals in dietary supplements as set forth in manufacturers’ recommended daily portions. At last year’s CCNFSDU, it was agreed that scientific risk assessment would form a part of the decision establishing upper limits for daily portions. But how big a part was left to decide at this year’s meeting. The EU, which had already gotten language into 3.2.2 mandating reference to daily intake from other dietary sources into the text, had wanted to add language saying: when maximum levels are set, due account should be taken to the reference intake values of vitamins and minerals for the population.
So this year both sides went into the CCNFSDU meeting seemingly prepared to duke it out over whether that language, in italics above, would go into the text as the EU wanted or stay out as the USA wanted. The end result was a compromise of sorts. The final text as agreed, reads, When the maximum levels are set, due account may be taken of the reference intake values of vitamins and minerals for the population.
This provision should not lead to setting of maximum levels that are solely based on recommended nutrient intakes (e.g., Population Reference Intake or Recommended Daily Allowance values.)
So, who won here? There were a number of comments but few answers offered after the fact. “We are pleased that we were able to come to a resolution,” Basil Mathioudakis, the EU delegate, told the Law Loft in a post session interview. One member of the US government delegation said to the Law Loft in passing, “It was important to change the language from ‘should’ to ‘may’. I was surprised that Basil agreed to that.” James Roza, the director of external affairs at NOW Foods, was perhaps the most frank of all, “We had to compromise. To get something through, there was no choice.”
But who really won? While opinions differ considerably here, we at the Law Loft think that the Europeans did - and big time. Why? While one can agree that CRN’s announced strategy of ‘expanding the disputed language into meaninglessness” helped weaken the offensive language in the disputed text, when one compares the Codex text as advanced for adoption by CCNFSDU and the European Union’s directive, one sees that the two are almost identical in key areas. Similarly, looking at the net effect of the agreed to language in the context of the new joint FAO/WHO framework setting project described above (which will be circumscribed to a degree by the Codex text), one can see a number of serious problems that the text either does not solve or actually exacerbates. Under the Codex guideline, it will be possible for the joint FAO/WHO framework project to establish a nutrient risk assessment framework that: uses risk assessment but conflates it with lots of guesswork, thus pushing upper levels in a downward direction, compounds that error with the addition of postulated (read that as imaginary) supplement nutrient intake added to estimates of nutrient intake drawn from the daily diet and then lastly adds into the mix reference daily intake values that may not be as low as they were in World War II when they were first designed to prevent overt vitamin and mineral deficiency in soldiers, but remain, even as revised upwards in more recent decades, very low.

And in the end, a kind of macabre piece of good news:
Putting a final end to the folly of thinking that we are not bound by what happens at Codex.
Incredibly, several apparently well meaning lawyers with no experience in WTO/Codex law or politics have touted the notion recently that it doesn’t matter what happens at Codex, since no nation is bound in its domestic law to what happens at Codex unless that nation files a notification and acceptance of Codex standards or guidelines with the Codex Alimentarius Commission. While even to suggest such a thing in the post WTO world seems like the height of folly, nevertheless, these positions, however off the cuff and/or misquoted, have gained a certain traction within portions of the dietary supplement industry and alternative health community in North America.
Fortunately, amid all this bad news coming out of Bonn and Paris, there is at least an end to this absurd folly. Let us be clear here, with the acceptance and ratification of the results of the Uruguay Round in 1995 that formally created the WTO and introduced both the SPS and TBT into international trade law, it is absolutely irrelevant whether a WTO member country formally accepts a Codex standard or guideline or not.
The member country is bound by whatever legal interpretation of a Codex standard or guideline the WTO’s Dispute Settlement Body’s Appellate panel applies to that standard or guideline. That is, in effect, exactly what the WTO’s representative had told CCGO prior to the meeting during the week of November 8th. So, on November 10th, a number of key players came to the CCGP meeting in Paris with the express idea of ending the obsolete reporting procedures to Codex once and for all. “These acceptance procedures have never worked. Countries ignored them,” US delegation chief Dr. Edward Scarborough told members of the US delegation at a pre-session meeting. “The appellate bodies of the WTO have said quite clearly that whether we, at Codex, vote for or against notification within Codex has no bearing on enforceability,” European Union delegate Henri Belveze told the GP meeting.
So, in the end, the delegates at this year’s meeting of the Codex Committee on General Principles agreed without dissent to recommend the total abolition of both the Codex notification and acceptance procedures.
Hopefully this long overdue decision will end the mistaken perception that Codex standards and guidelines have to be individually accepted by WTO member countries in order to become binding upon them.
Why is this good news? Because in order to react to where you are, you have to first see where you are.
So where are we in the end? Engaged in a battle for global dietary supplement regulation, a battle that means life or death for some of us, a battle that we are losing, to a Europe that doesn’t really believe in supplementation except on doctor’s orders.
While we are aware that a number of ana-lysts see all of this in terms of good versus evil and as conspiracy theory, we at the Law Loft see it in much sim-pler terms. We think that the high end of industry, seeing far enough down the road to see international regulations coming, wants to have something to sell, especially in the expanding, open European market. They want to have something to sell, even if the product they sell is not much more than cotton wadding in a bottle containing modest amounts of nutrients amidst a lot of filler. Their goal is, as it must be, to survive and prosper.
On the European side, there seems to be a real push coming from the silent but powerful Switzerland to see as they said last year that “these products (dietary supplements) are never going to carry health claims because they are never going to exist in high enough potencies to merit them”.
And within the European Union itself, we see not only a blend of bureaucratic intransigence and hostility to vitamins and minerals on the market as foods, but also a fundamentally different mindset toward who should control specialized nutrition. Dr. Rolf Grossklaus, chairman of CCNFSDU and a medical doctor specializing in nutrition, said it best when he told the Law Loft in a post session interview, “We need clarification that food supplements are foods, not drugs. But what is the scope of the food class? It is not to prevent disease or to heal but rather the scope is to optimize nutrition. Consumers should know that a balanced diet is best.”
So, what we face here is the fundamental fact that Europe thinks differently. They believe, especially in Germany, the founder of the regulatory concept of medical foods, that doctors should prescribe the meaningful products.
So here we are in a global context. On one side is Europe that believes in strict regulation and doctors’ prescriptions for the really useful products. On the other side is a North American populace that believes in freedom of choice but where many of the staunchest believers in freedom of choice and companies, most likely to be extinguished by the end results of the battle, do not even know that the global battle is raging. And in the center of the mix, we have powerful commercial interests allied with whatever side they think will produce the best market opening opportunities.
Is there anything left we can do here? Yes, but time is short and only an intelligent, well-crafted, concerted effort has any chance of success. Those interested in taking serious action, not just playing at it, are invited to contact the Law Loft at thelawloft@hotmail.com.
FOOTNOTES:
1. The scientifically established upper safe levels may in turn be lowered by risk managers taking into account other dietary intakes from conventional foods, thus creating even lower “maximum permitted levels” when the products finally reach the consumer.
2. The WTO international agreement that gives Codex international standard setting authority in specified areas of food safety while leaving the designation of other areas of food safety standard setting to unspecified “other relevant international organizations.” 

copyright to Suzanne Harris, J.D. and The Law Loft 2004-2010
by Suzanne Harris of The Law Loft, an independant international reporting teamCodex reporting

Suzanne Harris has an honours undergraduate degree in Political Science (International Organizations) and a law degree from the University of California School of Law at Berkeley. She previously practiced law as a trial lawyer with a lot of work on behalf of alternative practitioners. She has taught law at the law school level and for the last 10 plus years has been a journalist - both in print and on radio, reporting for food industry trade publications in Washington, D.C. and for various alternative health practitioner journals and magazines. She has attended Codex and related WHO, WTO et al, meetings and reported on them since 1997. In fact, she wrote the first article on Codex Alimentarius as she had just finished a big project about the WTO and hence  could see how the pieces fit together in an overal sense. (In 1997 she spoke at the HANS Forums in Vancouver and that is when we had our first introduction to her insights and probing questions and eloquent description of our slippery, sliding slope... Most of what is written about the Codex process and implications has had some fundamental direct or indirect input from Suzanne.

some more information about Suzanne Harris JD

ANTI CODEX LIBRARY BURNED TO GROUND - SUSPICIOUS FIRE GUTS LAW LOFT / AMERICAN FREEDOM NETWORK DIETARY SUPPLEMENT CONSUMERS PLACED IN SERIOUS JEOPARDY

A suspicious fire which occurred on Saturday night, November 29th in Johnstown, Colorado gutted the building housing the Law Loft- home of anti Codex researchers Suzanne Harris, JD and Peter Ludwell along with Patriot Radio Station KHNC- the American Freedom Network. The Colorado State Police Arson Squad is currently conducting an investigation.

The fire occurred just a short time after the Law Loft's research enabled IAHF and the grass roots to conduct a successful Washington lobbying campaign to get dietary supplements specifically exempted from the harmonization language in the FDA Reform Bill. Prior to being amended this language threatened to harmonize our food and drug laws with those of the European Union (where dietary supplements are regulated as drugs.)

Dietary supplement consumers have been put in real jeopardy by the displacement of Harris and Ludwell from their home/office by the fire which destroyed their computer, hard to find books, and crates full of documents, which have been critical in our battle for health freedom.

Although Harris and Ludwell were in Denver at the time of the fire so are unharmed, they just called me from a motel and all they have is the clothes on their backs- they don't even have a toothbrush. Their dog and six cats perished in the blaze, along with all of their personal effects. They told me that the brick building had been totally gutted, and that it resembled the burned out shell of buildings bombed during WWII.

They badly need our help, or we will lose their invaluable assistance in our fight to maintain health freedom. Another Codex submission must be sent to the FDA at the end of January, and without the assistance of the Law Loft, we won't be able to keep fighting back.

Harris conducted research at the World Health Organization libraries in Rome and in Geneva, and also had extensive records from attending Codex meetings in Geneva, and Washington and through their efforts to submit Codex comments to the FDA on behalf of the Life Extension Foundation, and the National Health Federation. Crates of invaluable documents were destroyed in the blaze.

Without the research of Suzanne Harris and Peter Ludwell we never would have gotten the German Codex proposal knocked back from step 5 to step 3 at the meeting in Geneva in June. We wouldn't have been able to kill the Special Panel the Codex Commission wanted to create in order to establish a negative or "no trade" list for herbs (which would have banned the sale of many herbs from international commerce.)

We wouldn't have been able to get dietary supplements exempted from the harmonization language in the FDA Reform Bill (which threatened to make our food and drug law the same as the European Union's where dietary supplements are regulated as drugs) because it was their research that enabled us to pressure Congress to make the change.

Radio Station KHNC - The American Freedom Network - is a Patriot radio station which, until the fire, had been conducting 24 hour a day programming which included the Law Loft's 5 day a week program, The Law Loft report, through which they had been sounding the alarm regarding the Codex International Threat to Health Freedom, as well as such related matters as the threat posed by the harmonization language in the FDA Reform Bill as well as a host of other civil liberties issues involving NAFTA, GATT, the threat posed by "Fast Track", MAI, and other issues.

In addition to the Law Loft Report, The American Freedom Network (Radio Station KHNC), had been covering such matters as the incident at Ruby Ridge, the WACO massacre, the Oklahoma City Bombing, and a host of other controversial issues pertaining to the maintenance of American sovereignty in the face of an effort to force us into a World Government.

Harris and Ludwell have been particularly effective in guiding the grass roots in how to fight back rationally and politically.

Suzanne did a lot of public speaking in Canada as well as the USA, which helped get the whole country up in arms against Codex, and this helped us to get the German proposal knocked back to step 3, and has also put considerable pressure on the Canadian HPB.

At any time of year, a fire which destroys everything you own (pets and all) is a terrible thing - but this fire occurred in Colorado where below zero temperatures and heavy snows are common and it happened right before Christmas. Suzanne and Peter had no insurance. They were living in a converted toolshed in the back of a Patriot radio station where they didn't even have cooking facilities or a shower. They had to go down to the truckstop for showers and have been forced to spend what little money they had, eating meals at the local diner. The sacrifices they have been making for the cause of health freedom have been immense. They have been crawling over broken glass for the cause of freedom. What the traveling Suzanne has done for this cause has been made possible only through generous donations by people who value health freedom.

by John C. Hammell, International Advocates for Health Freedom: http://www.iahf.com