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During oral arguments, one judge asked the FDA’s attorney whether a statement about omega-3 fatty acids by the Department of Health and Human Services, the FDA’s parent agency, would be "inherently misleading" on a label. She said yes.
"Why is it inherently deceptive in the label, and not in the brochure?" the judge wanted to know. "I’ve got to tell you," said another member of the panel, "I walk to the grocery store all the time...I just don’t get the impression that people are absolutely terrorized when they approach a dietary supplement."
In its opinion, the court said the government seemed to be arguing "that health claims lacking ‘significant scientific agreement’ are inherently misleading because they have such an awesome impact on consumers as to make it virtually impossible for them to exercise any judgment at the point of sale. It would be as if the consumers were asked to buy something while hypnotized, and therefore they are bound to be misled. We think this contention is almost frivolous."
Showing appropriate skepticism, the judges seemed to think that American consumers are capable of doing likewise.