A Lesson for America

Legal Tips

Written By:
Scott C. Tips
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The United States, like Great Britain, is seeing its food laws come under increasing pressure to harmonize and conform to international standards.

When I was helping a client with a defense against the U.S. Food and Drug Administration (FDA) on a homeopathic-drug product that the FDA was challenging in court back in the late 1980s, I consulted with, among others, the Queen of England’s then-personal homeopathic pharmacist, Mr. Ainsworth. We met in a restaurant outside of the London urban sprawl, a bit northeast of the City, in a small town whose name I have long since forgotten; and as we sat there talking, Mr. Ainsworth idly picked up some of the condiments sitting on the table between us. “Of course,” he said, looking at them, “Wouldn’t you know it? They are all French! And I guarantee that you won’t see British condiments on French tables!” Mr. Ainsworth—now retired—was a huge help to us on our case, which we did win by the way; but even now, 20 years later, I still think about his words and can still see him rolling the condiment around in his hand so he could read the label to see where it came from.

Oil and Water
As you may know, Britain joined the European Community in 1973 under a Tory government. Two years later, some 66% of voting Britons said they liked the idea and that Britain should stay. Twenty years later, the European Community was replaced with the European Union. Now, 36 years later, what has happened to Britain? It has been virtually submerged within the European Union, with most important decisions being made in Brussels and not London.

Perhaps that could make some sort of sense for France and Germany, two countries that share the common bond of Napoleonic Law. Great Britain, on the other hand, has a millennia-old tradition of using Common Law. To merge these two systems is like mixing oil and water—they don’t. One must rise above the other, for Napoleonic Law’s basic foundation is that “All is forbidden except that specifically allowed”; whereas with the Common Law, it was and is the complete opposite—“All is allowed except that specifically forbidden.”

This might seem like a small point, but it is the fissure that leads to a Grand Canyon of differences. It is the philosophy of control versus the philosophy of freedom. It is the pettiness of government functionaries— little “Napoleons” as we know them even today—and their arbitrary and capricious exercise of power over individuals versus the limitations on government power that have long characterized British Common Law and its colonial offspring.

Why else did Britain become Great Britain? Once just a distant, backwater outpost of the Roman Empire, the British Isles became the Center of the World, the symbol of freedom and rule of law, not man, to all others. Great Britain spawned equally free colonies and countries throughout the World that were based upon three fundamental things: free markets, private property and the rule of law, Common Law. The importance of those three supports cannot be overstated, and based upon them, a “nation of shopkeepers,” as Napoleon was fond of calling England, prospered and came to rule a greater part of the World and to bury Napoleon.

Napoleon’s Revenge
So Napoleon had his Waterloo, but where is Great Britain 194 years later? Great Britain has met its Maastricht and perhaps its Lisbon as well. Those treaties bind Great Britain more closely to Brussels than Napoleon could have ever dreamed of. Weights and measures dictated by a Brussels-led Superstate? Even what foods Britons may eat and drinks they may drink? Members of Parliament actually unable to affect thousands of EU rules and regulations governing Britons’ everyday lives and activities?

tatesFor us, this means that relatively liberal Great Britain, with its lighter regulatory approach to food supplements and natural health products must—along with Ireland, Sweden and the Netherlands—kowtow to Brussels and its draconian Food Supplements and other Directives. The country must lower itself to Napoleonic standards of guilty until proven innocent. For natural foods that have existed for centuries if not millennia, this is pure nonsense. It is also a violation of Britons’ right to consume whatever healthy foods in whatever quantities they choose and will result in the disappearance from British shelves of hundreds if not thousands of safe supplements and natural food products. Indeed, it has already begun.

Yet, as long as Great Britain remains in the European Union, Britons’ frantic appeals to their representatives in Parliament are of faint use and effect. After all, what can they really do? Their hands are tied by EU Superstate dictates, with British rights long ago signed away by an uncaring elite. And the Members of European Parliament are a joke really—an expensive debating club that the European Commission keeps around to hoodwink the masses with pretences of democracy.

Centralization, the Bane of Freedom
Yes, it is wonderful to be a member of a powerful club like the European Union. Swaggering never felt so good. Yet it is as ephemeral and meaningless as owning the best car in the neighborhood. What really matters is what leads to a moral and just society. And a moral and just society is almost impossible to achieve within a highly centralized empire or superstate. In fact, I would say that it is impossible, for the more you distance the power wielders from those over whom they exercise that power, the more corrupt and arrogant they will become and behave. It is ultimately about accountability, and you cannot have true accountability when the rulers are not immediately and directly accountable to the citizens.

Of course, centralization is relative and runs up and down a scale. Just ask the Welsh and the Scots, many of whom have long chafed at the centralized power exercised over them by London. Devolution is not just a concept to be applied to the EU, it also needs to be applied nationally as well. Get power down to the level of the people so that you can look your fellow man or woman legislator in the eyes and demand your rights, with the heat of your breath and the passion of your words spilling right onto their faces.

The truth of this is evidenced even by the unjust laws passed in Great Britain by its own Parliament. Who would have ever thought 100 years ago that the British government would do away with the legal principle of double jeopardy by passing the Criminal Justice Act of 2003, which allows a previously acquitted defendant to be retried upon the discovery of “new and compelling evidence”? Or, even allowing hearsay evidence to be used in court, thereby abolishing a defendant’s right to confront and cross-examine his or her accuser? Yes, even London is too far away.

Ainsworth’s Point
When I last saw Mr. Ainsworth and we had said our goodbyes as I left for the local station to catch one of the last trains back to London, it was still bitterly cold and wet, almost to distraction for someone like me used to far warmer climes. Still, despite my shivers, I realized with almost a start that what Ainsworth was really saying was “We’ve lost control!”

For Britons have lost control. Control over their health and their wealth. And more so now than 20 years ago when Ainsworth made his point. Regaining that control will not come from pleading with and importuning the princes of a distant Imperial city. Nor from showering them with money and favors. Regaining that control will come only when enough Britons say, “My health is too important to leave in the hands of distant bureaucrats. My life is my own and I want it back.”

The United States, like Great Britain, is seeing its food laws come under increasing pressure to harmonize and conform to international standards. There is an ongoing, concerted effort to effectuate such harmonization and the unproven assumption is that it would be good for everyone. We are looking at a creeping North American Union that would mirror the European Union; and the United States, with its more liberal approach to food and supplement regulation, would also find itself “dumbed down” to the lowest common denominator of Canada and Mexico. Yet how good would that really be for everyone? The answer can perhaps be found in the nation of shopkeepers. WF

A graduate of the University of California at Berkeley Law School, Scott C. Tips currently practices internationally, emphasizing Food-and-Drug law, business law and business litigation, trade practice, and international corporate formation and management. He has been involved in the nutrition field for more than three decades and may be reached at (415) 244-1813 or by e-mail at scott@rivieramail.com.

Published in WholeFoods Magazine, August 2009

Editor’s Note: This article is intended for information purposes only. Because state and municipal laws vary greatly, as do the circumstances of individual cases, readers are advised to contact an attorney for specific legal advice. ©2009 Scott C. Tips