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(Court Asked to Declare FDA Censorship of Selenium Claims Unconstitutional and to Enjoin FDA Order)

Washington, D.C. - On October 13, 2009, Emord & Associates filed with U.S. District Court Judge Ellen Huvelle (U.S. District Court for the District of Columbia) a motion for summary judgment. The motion asks the Court to declare FDA's condemnation of five selenium/cancer risk reduction claims unconstitutional under the First Amendment and to enjoin FDA from preventing the three parties to the suit from using the claims on labels and in labeling of selenium-containing dietary supplements. The three parties to the suit are the Alliance for Natural Health US; Durk Pearson and Sandy Shaw; and the Coalition to End FDA and FTC Censorship. The motion explains that FDA "has never applied, let alone cited, the First Amendment standard" that the federal courts have imposed on the agency's health claims review. The present suit comes after four others that ruled against FDA censorship and required FDA to apply the First Amendment standard. "Coming after four federal court decisions prohibiting the same kind of censorship," the motion reads, FDA's suppression of the selenium claims is "contumacious conduct." It "rests on the supposition that this agency is not bound by the constitutional decisions of the federal courts and may function independent of the rule of law, as a law unto itself." The motion further states, "FDA's speech police are . . . rogue agents who view their power to censor unanswerable to the law—beyond the reach of the First Amendment and this Court." FDA's "executive officers view themselves and FDA as above the law, unaccountable to the Court, and not beholden to the oaths they swore to uphold the Constitution and the laws." The motion seeks a declaration that FDA's censorship of four of the claims violates the First Amendment and that FDA's qualification of one of the claims also violates the First Amendment by compelling presentation of false and lengthy qualifications contrary to court orders that FDA disclaimers be "succinct and accurate." The motion asks the court to impose an injunction blocking FDA from preventing use of the claims with reasonable disclaimers.