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F. Earle Fox
See also 20-20 presentation & Mannatech Page
The state of Texas is mounting a law suit against Mannatech, and the law firm of Lerach, Coughlin, Stoia, Geller, Rudman, & Robbins (Lerach, et al) is riding on the coattails of the State of Texas to mount its own civil suit. Because I have no knowledge of how Mannatech will respond, I will not address whether the charges against Mannatech are true, but will look at the much more profound issue of the relation between law and truth. My comments are based on the 50-page document of the Texas suit, a public document, emailed to me by the Lerach law firm.
This is a superb case study in the direction and meaning of law in America. The issue hangs on the direction law has taken in America since the middle-to-late 19th century. What had been a Biblically oriented legal system upheld by, e.g. Justice Joseph Story, was turned into a secular, positivist system by men such as Justice Oliver Wendell Holmes.
The Biblical understanding is illustrated by William Blackstone who literally "wrote the book" on English law, being, apparently, the first to codify on paper the massive, but no doubt somewhat disorganized, history of English Common Law in his Commentaries on the Laws of England (1765-69). His writing dominated law in both America and England in the late 1700's and into the 1800's.
The Biblical view, put briefly, says that there is only one law in the universe, the law of God, and that the task of civil government is to administer the law of God, not to make up its own -- of which it is logically incapable.
Positivist law, on the opposite hand, says that civil law owes nothing to any deity, and that law is what the legislatures and courts generate out of their own notions as they deal with the political problems of a people. Law thus "evolves". We have a "living" constitution. Or, as one Supreme Court justice was heard to say, "The Constitution means what the Supreme Court says it means." So it "lives" and "evolves" with the pragmatic insights of the government at the time, unanchored in objective morality.
Positivist law is nothing new. Most, if not all, pagan law systems functioned under those same principles. There is nothing in the pagan cosmos which can tell them otherwise. What anthropologists call ethical monotheism was given to the world by the Hebrews, who understood that the word of the Creator of all things defines the meaning, rights, freedoms, and obligations of all things. Objective ethical values come from God, or they do not come.
The renewal of positivist and pagan law in the 1800's, of course, makes the Supreme Court equal to God in matters of law and morality. They wrongly (because it is logically impossible) imagine themselves able to decide arbitrarily the meaning of right and wrong. If they could, no rights would be inalienable because there would be no law above them by which they could be called to account.
Positivism is really another name for tyranny-in-the-wings. If there is no God who says what the law means, then there is no effective check on the power of civil government -- other than armed rebellion. Then might makes right, and so politics is no longer about truth or justice, it is a contest only about who will be the tyrant. That struggle has been the history of pagan and then secular politics from earliest times. Only if God is the ultimate and final lawgiver can we humans have inalienable rights untouchable by our inherently unstable civil governments.
On the Biblical view, God owns the political as well as the religious realm. So the separation of Church and State does not mean the secularization of the State, but rather that both Church and State are under God, each having its own separate sphere in society. The Church is the conscience of society, teaching our relationship and duty to God and one another, and the State is the referee, the administrator of the public realm, and protector against invasion.
At the end of a certain trial, a defendant was heard to say, "I did not receive justice!" to which the judge reportedly responded, "This is not a court of justice, this is a court of law!" Knowing nothing of positivist law, I was appalled at the judge's response, and thought long and hard about how to answer him. The answer, I think now many years later, is tied to the two different ways of trying to do law: Biblical or secular (positivist).
On the positivist view (the secular attempt to replace the Biblical law which had undergirded all Western notions of political freedom and justice), there are no "absolutes", no given standards, only standards arrived at in the pragmatic course of events, trying our best to survive by ourselves imposing some viable order on the surrounding chaos.
In the secular/pagan worlds, there is no given moral order, no principle by which to distinguish right from wrong. So we are then left with the only alternative, pragmatism -- what works best. The problem is, "works best for whom?" Hitler, the Jews, Islam, Christians, secular folks? We all have conflicting notions of what "best" might be. And without the law of God there is no standard above us all by which we can adjudicate and reconcile our differences. So, we need to know whether there is a Creator God, and if so, what He might be saying to us.
Without God, life is then a crap shoot, in which order comes only from being imposed by some strongman. History, as we say, is written by the winner, i.e., by the successful strongman and his party. In secular democracies, the crap shoot tends to be a bit more polite, but in the end, it is still power struggle -- because there are no objective moral standards by which civil government is itself to be governed.
Civil government, in effect, has no obligations -- but citizens are "supposed to" have obligations under government. Civil government is the only entity Big Enough to sustain the illusion that it can replace God. For many of those who have no personal relation with God, that delusion seems quite real. And in an inherently chaotic world, almost any order, even that of a tyrant, is better than no order.
In such a world, civil government has no obligations, but also in reality neither does anyone else. What passes for "obligation" is the illusion created by the executive power of the police. But obedience out of fear is quite a different matter from obedience out of either duty or love. Since there are no objective obligations at all, there are none for either government or citizen.
We obey either because we happen to agree with the laws, or because we do not want the long arm of the law intruding painfully into our lives. But there is no moral obligation, and hence no legitimacy. Neither government nor citizen can claim more legitimacy than the other. It is power struggle -- governments try to control, citizens try to get away with as much as they can.
In such a world, truth, along with everything else, is treated pragmatically. The aim then of government will not be to subject itself to the demands of truth (it being "relative") or of morality (there being none), but rather to defend its own turf, to ensure that its side and its allies win. Both truth and morality are treated as "relative" (though in both cases that is a logical absurdity), and used merely as tools for the preservation of power.
The positivist notion of law, lacking objective morality, will always drift into this totalitarian state of affairs. It is just a matter of time. The drift in America has been slowed by the stubbornness of Biblical foundations resisting erosion, but for most of the 19th and 20th centuries, erosion was slowly winning. It accelerated markedly with the Supreme Court decision in 1962, Engel vs. Vitale, outlawing prayer in government schools, in which the highest court in the land told God that He was no longer recognized as sovereign over America, and that He was not allowed to talk to children on government school time, nor they to Him. They, the Court, would take over God's role in defining right and wrong. They used different language, of course, but the people on the street knew that God was out -- and that therefore so was morality.
In practical fact, either Jesus is Lord, or civil government will be lord -- with its inevitable totalitarian drift.
Because without God there is no legitimacy, only power struggle, the Supreme Court, in one move, destroyed the whole basis of American constitutional legitimacy, and we were officially cast onto the chaotic seas of pragmatism.
Why is this relevant to the law suits? It is relevant because the Texas case vs. Mannatech shows many, if not all, of the above unfortunate and dangerous signs.
Since the civil suit is riding on the coattails of the Texas suit, we will focus primarily on the Texas suit.
The State of Texas is alleging that Mannatech (and other associated entities and persons, notably Sam Caster, former CEO) is using illegal means to advertise its food products as medications, thus scamming the public and causing damage to legitimate companies.
The Federal Drug Administration (FDA) has ruled that Mannatech may not claim healing power for any of its products because their products are not certified as medicines by the FDA. Mannatech is allowed to say that Ambrotose, their main product, can, for example, help restore the immune system, but they may not link Ambrotose to any specific disease, not even by suggestion. They are claiming that Mannatech is willfully doing so despite requests to stop.
The suit alleges:
Defendants market and sell such dietary supplements as a way to cure, mitigate, treat, or prevent diseases, illnesses, or serious conditions, despite Defendant Caster's admission that the products do not cure any disease, and despite the fact that this marketing violates both federal and state food and drug laws, as well as the Texas Deceptive Trade Practice - Consumer Protection Act. (P. 4)
By law, claims cannot be made that dietary supplements are intended to cure, mitigate, treat, or prevent disease. P. 5
Regarding Mannatech's use of testimonials:
One essential element of each of the [corporate convention] events is a time set aside for testimonials.... These testimonials, which are generally made by Mannatech's associates and their families and friends, make numerous claims that Manntech products have cured, mitigated, treated, or prevented diseases. The whole purpose of the testimonials is to create a frenzy and motivate associates to sell even more products, in large part through the relaying of deceptive claims set forth in the testimonials. P. 6 [My emphasis.]
The suit then describes several such testimonials.
#1 claims that a boy apparently with autism was cured of his symptoms from taking Ambrotose.
#2 claims that a man was diagnosed with "Non-Hodgkin's B-cell Lymphoma a little over a year ago", with cancer spread (according to the oncologist) to eight places in his body, who was told that it was incurable. After taking Ambrotose for a period of time, his lab work indicated that seven spots had disappeared and the eighth was the size of a pea.
#3 reported a woman who had collapsed, was put into a comatose state to prevent heart attack or stroke, and got pneumonia. Her family was told that she would die, and was taken off medication. After being administered Ambrotose over night, she was making facial motions and blinking her eyes on command. The next day she spoke a few words. She is now back home and healthy.
The suit is filled with such testimonials, and the Mannatech material has many, many more, most of which could be easily investigated. It appears that no significant investigation of the testimonies ever happened. (The reader might also take a look at my own testimony.)
Regarding such testimonies, the suit says:
While Mannatech tries to create the appearance that it strictly prohibits illegal drug claims through its written policies and procedures, Defendants' conduct clearly tells a different story. First, Mannatech's policies and procedures outlined above specifically allow conduct that is prohibited by the TFDCA (Texas Food, Drug, & Cosmetic Act). For example, Mannatech's policies allow at least limited personal testimonials at both opportunity meetings (i.e., meetings to sign up new associates) and educational meetings (i.e., meetings designed to sell products). Such personal testimonials, even with a disclaimer, constitute false advertising and are prohibited by the TFDCA. P. 21 [My emphasis.]
Testimonials, the telling of a truth, is subject to prior restraint in the supposed interests of the public. Note that in the quote above from page 6, the suit does not hesitate to ascribed malicious motives to Mannatech.
Unless Mannatech can come up with a good defense, this would appear to be an open and shut case. But as Proverbs (I think) reminds us, "Everyone's case appears right -- until you hear the other side..." Until the trial, we will not likely hear Mannatech's side, but we can dig into some underlying issues.
Under Biblical law, the highest aim in all circumstances is to benefit the people involved, benefit in the deepest sense, not merely give them their way. The two highest commandments in the universe are to love God and neighbor. With respect to neighbor, we are to commit ourselves to doing that which is life-promoting and to avoid that which is life-destroying. There is no possibility of doing that apart from getting the truth of the situation -- at any cost to oneself. Only truth, as Jesus noted, will set us free. If we want to be a free people, we must, at all costs, pursue all the relevant truth.
Furthermore, under Biblical law, truth becomes an absolute obligation, not merely a pragmatic "if it fits your aims and purposes..." If truth does not fit one's aims or purposes, one is obligated to change one's aims and purposes. Truth trumps all else.
That is so, most importantly, of law. That is what trials are for, to find the truth of guilt or innocence. So any system of government which subverts truth is contrary both to common sense and to the law of God.
We research the truth (using the rules of evidence) to find the just way. The second goal of law, after truth, is justice, not merely law -- especially if one counts the two highest laws of God as part of the Common Law of the land (as held by Justice Joseph Story).
In the economy of God, love and grace are the highest justice. Promoting life, promoting honest, loving relationships is the highest justice there can be. So legislatures and courts have the highest obligation to pursue justice in this sense -- mandating and enforcing laws in a manner to produce that high goal.
Only the legal system of God is capable of being always right -- because only God can make love and grace the foundation of law. Secular civil government is limited to commanding items which are matters of specific behavior and cannot deal effectively with attitude or motive. But that means that civil government is incapable of passing laws which will cover every situation. No legal system other than that of God is both realistic and flexible enough to cover all cases.
That is why an honest legal system will allow wiggle room for enforcers of law to decide whether a given law is appropriate for a given case. The final protection in that regard is the ability of a jury of peers to nullify a law which it considers inappropriate for a case, as in the Dred Scott decision.
Only the law of God is capable of being always right in each and every possible case. There are no conditions under which it would be right to not love God or one's neighbor.
A positivist legal system cannot accomplish that. It is limited to its own capacity to "evolve" laws which seem to fit the situation, with no objective guidelines other than "what works" -- works for some almost always unspecified person, i.e., special interest group (certainly not God). So law (not love), being itself the highest category, erodes and swallows justice. A court of law, not a court of justice. Any court that is not a court of justice should be shut down. The courts belong to We, the People, not to the judges, who are our servants.
It should be no surprise, then, that the positivist mentality will have a hard time going beyond the literal law as written in order to discern what really benefits society. For example...
Even if all of the studies [by Mannatech] were scientifically valid studies and supported the proposition that Defendant' products could cure diseases, Defendants still cannot rely upon these studies to support their claims that their products cure, mitigate, treat, or prevent any diseases because their products are dietary supplements and not drugs. P. 14. [My emphasis.]
The Defendants must apply to the FDA for such permission and approval for their products. As a legal fact, these statements no doubt contain truth. The law no doubt says that one must get FDA permission to call one's product a "drug" or a "medicine". And so the activities of Mannatech are over and over declared "false" and "illegal", with accusations of deliberate, willful deceit.
But, my reading of the suit indicates that at no point does the State of Texas inquire about, or even show interest in, whether the testimonials expressed the truth of the matter. It apparently does not matter to them whether people were in fact being healed. It is of no consequence to the suit whether Ambrotose does what Mannatech claims it does. Does this indicate a genuine concern for the public? Or does it indicate a false and misleading notion of both science and law and their role in public life?
Or, perhaps a desire, controlled by special interests, to hide the facts?
Certainly the suit would have a quite different impact and public reception if it were understood that Ambrotose does indeed positively influence the diseases we commonly fight -- including some of the most virulent: cancer, autism, diabetes, heart conditions, etc.
Clearly, the public must be protected from scam artists. But equally, and more importantly, the public must be protected from corrupt and/or ignorant government -- many of which are also scam artists. By a wide margin, government has caused pain, tragedy, and death, more than any other group or entity in human history (read Death by Government by R. J. Rummel). American government is no stranger to abuse of its citizens, and the price of freedom is still vigilance.
If truth is fundamental to any and every aspect of life, and very important to the outcome of legal proceedings, then one would want the law to protect the telling of relevant truth on all occasions, and not systematically shut down truth-telling. There may be specific occasions for inhibiting the telling of a specific truth, but there can never be justification for systematic shutting down of truth-telling for a whole range of communication. Law must be tailored to open up truth-telling, not to shut it down. Only the evil-minded can benefit by systematically shutting down open discussion.
There are currently approximately 569,000 independent associates and members of the Mannatech organization, according to Sam Caster, former CEO. Given my experience with Mannatech, and Ambrotose in particular, I would not be surprised to learn that all 569,000 could relate at least one dramatic, medically unexpected healing from Mannatech products. That would mean well over half a million significant healings. Are such tidal-wave possibilities irrelevant to the State of Texas?
One is reminded of a parable told by Danish philosopher, Soren Kierkegaard. A hurting fellow went to a philosopher friend for comfort. After he explained his painful situation to the philosopher, the philosopher began to cogitate from this point of view and that on the matter, while the hurting fellow was standing around waiting for some wisdom. The philosopher, says, Kierkegaard, had put the fellow in a parenthesis -- which never ended. There was a "(" but no ")". The fellow was trapped in a never-ending parenthesis. Bureaucracies often do the same thing. Sometimes legal theories count more than hurting people.
Suppose, for example, that 90% of the testimonials were in fact true, that many thousands of persons were experiencing effective and measurable healing through Mannatech products. How should Mannatech and its sales people respond? Supposing that not only average persons, but well qualified medical personnel were testifying to their personal healings in this manner (as is indeed the case). How should that information be handled? Should it be kept under a rug, waiting for the FDA to respond? Or should thousands more lives be helped, perhaps saved, by getting the information out?
What is the role of scientific approval in such cases? Science is all about getting the truth of a matter, yet the scientific community is itself riddled with scams and fraud. Government is all about justice, but it too is riddled with corruption. Is testimonial truth-telling to be shut down to wait for scientific or political bureaucracies to come to the rescue?
Whenever truth is systematically suppressed, people are hurt, and one had best look for special interests who might benefit from such suppression. Suppression of truth is indicated by St. Paul to be the first step in the Fall (Romans 1:18). Satan is called the father of lies, and his kingdom one of darkness.
On the other hand, we have on good authority that the law is made for the people, not people for the law, (Jesus referred to the Sabbath, Mark 2:27, but, surely, His intent was the law as a whole). The American legal system was also surely made for the citizens, not the citizens for the law. If open truth-speaking is not a first priority, the reverse will happen.
The only way for to find out whether the testimonials were true would be to investigate the testimonials. The suit shows no interest in doing so. Indeed, it subverts that possibility by strongly implying, "We all know, don't we, that these people are deliberately deceptive, and that the testimonies are false, set up by Mannatech leaders to deceive the public." In the absence of a supportive investigation of the testimonies themselves, this amounts to slander, and should be prosecutable.
One cannot decide whether the testimonials were true by looking at the law, any more than one can decide which team won the football game by looking at the football rule book. Yet that is the subtle implication of the quote above from page 14 (...because their products are dietary supplements and not drugs). The section italicized implies that the truth of the testimonial claims is to be decided by the rule book, which is nonsense. Their products being dietary supplements, not drugs, is a matter of legal definition. Whether their products heal anyone can be known only by open, public testing. The suit uses the legal definition to foreclose exploration of the supplements themselves. That is either incompetent or dishonest law. It would appear that Texas either does not understand good law, or is complicit in a scam to destroy Mannatech.
The effect of the FDA and the Texas understanding of the law is thus to define words such as 'true', 'legal', 'drug', or 'medicine' with a meaning which is other than the common understanding. If this special understanding is made clear all through the process, no harm is done. But juries, for example, (and, in this case, the public generally) are not likely to be informed by the prosecution of such subtleties unless it helps the prosecution's case.
In the present situation, it would not. The last thing the prosecutor would want is a muddying of his waters by the news that Ambrotose does lead to astonishing healings.
FDA concluded that these claims to treat, cure, prevent, or mitigate disease cannot be made for products under 21 U.S.C. 343(r)(6), dietary supplements. FDA determined that such claims make these products drugs and drugs require approval by FDA pursuant to 21 U.S.C. 321(g)(1)(B). P. 35
The FDA, of course, can define words any way it pleases. But the FDA does not define reality. It can determine what requires FDA approval. But it cannot by fiat determine that Ambrotose is or is not effective. The on-the-street common meaning of 'drug' in the sense of 'medicine' is a substance which does indeed help cure bad physical conditions. Again, whether or not that be true can be ascertained only by looking at the substance in question, in this case, Ambrotose, et al. Whether Ambrotose heals anything cannot be ascertained by looking at the FDA rule book. The rule book will tell you only whether it meets a government definition of 'drug' or 'medication'. It will not tell you anything about whether Ambrotose heals anything -- that is, whether it is really a medication, an effective-on-the-street medication.
Science is appealed to, of course, because, properly employed, science specializes in getting the truth of such matters as whether drugs are helpful. But science, like politics, is run by fallible human beings. The scientific community is beset with bureaucracies, and is all too often under the noxious influence of special interests. There is nothing in practice infallible about scientists. Thus, when the authority granted by the public to the scientific community is used by government to shut down competing observations, that example of science has lost is vocation -- to be a resource for truth, and is not to be trusted.
So -- in the absence of an honest investigation of the street evidence -- to prevent the claims of healing by arbitrary fiat is silly, irrational, and should be subject to legal action. The disconnect between law and truth, and between law and justice, must be remedied. As valuable as laboratories are, truth is lived out on the street, not in the lab.
The man on the street is looking for help with specific issues, specific diseases and disabilities, and has a perfect right to seek information on the capacities of food supplements regarding those diseases, etc. There are times when the evidence is so public that only a dolt or a dishonest person would not admit to seeing it.
If the government is forbidding vendors to respond to queries from potential customers regarding "anecdotal" (as opposed to "scientific") testimonial evidence, that is unconscionable. Sometimes truth on the streets overrides the rigorous techniques of science -- "peer review", "double-blind studies", and "randomization". Sometimes the people need to take charge of their own lives. The American legal system provides opportunities for doing just that.
Furthermore, every scientific conclusion is, at bottom, a pile of anecdotes, testimonials from scientists to having done certain experiments and having seen certain results. We give them credence above most persons because we believe them to have disciplined themselves to honesty and to the rules of their profession. But that trust is provisional, and in no way invalidates on-the-street testimonials.
Science is just ordinary common sense paying attention to the details. The difference between scientific testimonials and on-the-street testimonials is that scientific testimonials are the result of a larger testing process. The anecdotes are organized and sifted, but at the end is just another testimonial from a scientist. Most of us have never examined the methodology or personal integrity of the scientists involved. But we tend to trust the testimony of scientists because of their reputation for truth-seeking.
That trust does not give the pronouncements of the scientific community an infallibility such that on-the-street experience, especially when backed up by the testimonies of numerous other persons, should have no significant part in the public discussion.
We have trusted sometimes to our hurt. Scientists are just as vulnerable to greed, reputation seeking, and power struggle as the rest of us. When government and the scientific community team up, we need to be all the more suspicious and careful, insisting on adequate oversight and accountability of all concerned to We, the People.
Bureaucracies tend to have a self-serving disconnect with reality. World War II soldiers came up with an acronym, SNAFU, for "Situation Normal -- All Fouled Up", to describe the condition. Bureaucracies often lose their original mission and focus on protecting their turf, boundaries, and power, regardless of whether they serve the people. And so bureaucracies attract the power-oriented.
One asks, for example, where is the feedback mechanism from the FDA to Congress to tell legislators that the laws under which the FDA operates may not be operating adequately? Where is the Godly, truth-oriented common sense leadership of the FDA? Do they have a comprehension of their calling to be servants of the public, and that we, the people, are not wards of government, but their employers and bosses?
If we can believe the testimonies, there is a tidal wave of healings, but the FDA seems incompetent and/or unwilling to conduct an honest investigation -- as though the official "scientific process" was the only way of knowing the truth. To treat truth in that manner is betrayal of the people, of science, of the law, and of God -- the source of both science and law.
The suits against Mannatech are a tempest in a teapot compared to the larger issues of who is God, God or civil government. The only possible cure for the spirit of SNAFU is the Spirit of the Living God among His people. Truth, righteousness, and love make up the immune system of the human race. If truth, righteousness (the law of God) and love (the law of God) are not pursued, we become subject to the viruses of falsehood, unrighteousness, and perversions of love which invade and infect the body politic. Incompetence, self-centeredness, idolatry, and power struggle will, in the end, prevail.
One hopes that Mannatech will respond to the legal challenge:
1. Yes, we wish to comply with the law; but,
2. We also bring charges that:
a. the present laws governing the relation between law and truth do not adequately understand or support the role of the scientific community or the role of personal testimonies, and do not adequately support respect for an open truth-seeking process;
b. the present reigning positivist philosophy of law is inadequate to explain and support a concept of either legitimacy or justice;
c. beginning with positivist law of the 1800's, and then openly in the 1900's, the Supreme Court, with Engel vs. Vitale and many succeeding Court decisions, has gutted the very foundations of legitimacy in American law by denying the sovereignty of God. They have thus rendered the Constitution only a piece of paper to be reinterpreted by the Court at its will, thereby leaving the American people subject to a government which has no authority higher than itself, the very definition of tyranny.
Without the God of the Bible and His mandate for truth, courts of justice will become courts of law, truth will be undermined, and legalism in one of its many forms will replace justice.
I called the law firm, Lerach, et al, noted above, to get information on their class-action suit, as they describe it, "brought on behalf of investors in Mannatech", because I was an investor in Mannatech. I was informed that Mannatech was being charged with illegal marketing practices, and that as these practices became known, that investors were hurt by the falling Mannatech stock price. The civil suit was to claim damages for the investors from Mannatech for the losses of the investors.
As I write, the stock value of Mannatech has declined about 50%, not because of the revelation of alleged Mannatech abuses (those issues had been raised before, with little or no drop in share price), but due directly to the two law suits mounted against Mannatech. My prediction: Whether Mannatech is in the wrong or in the right, few if any investors will benefit from the civil law suit.
If the complaintants win, Mannatech may be damaged for a long time, assuming it survives. In that case, no investor will win. We may all see our investments diminish for a long, long time, if not go under all together. The only money winner will be the law firm, Lerach, et al. Despite their "kind thoughts", the sentiments of Larach, et al appear not to be for the investors, but for pockets of Lerach, et al.
I have only cursorily examined the 1000 page document emailed by Lerach, et al, which is their case against Mannatech, but there is little hope that they would look any more deeply into the truth of Ambrotose and the testimonials. They would not want to damage the Texas suit, on whose back they are riding.
If Ambrotose and other Mannatech products prove themselves to be effective as testimonials indicate, regardless of how the Texas suit goes, perhaps Lerach, et al should be themselves open to a class action law suit by investors angry over one more ambulance-chaser type looking for gold amidst someone else's troubles.
How, then, does one combine the need for public protection with the need for freedom of speech?
The First Amendment guarantees freedom of speech. The FDA regulations constitute prior restraint on free speech, forbidding testimonials (see quotes above from pp. 6 & 14) without even investigating whether they are lies and deception or whether they are true. The rule book (not honest observation) says they are not allowed, so they are assumed to be deceptive.
The law must include room for cases where public evidence can override prior restraint of speech which is based on the need for specialist (scientific) assessment. I am not a constitutional lawyer, but I hope that one gets on this case to discern whether the prior restraint placed by the FDA on testimonials constitutes a breech of the First Amendment protection of free speech. We live under a legal system in which obscenities and blasphemies are protected speech, but where testimonies of healings are prior-restrained. That should not be tolerated.
If the apparent misuse of legal power by the FDA and the State of Texas be true, the misuse might stem either from a positivist view of law which cannot see that justice is an integral part of law, or it might stem from some illicit motive, such as collusion with pharmaceutical companies which do not want to see products such as Ambrotose on the market, not, at least from their competitors. One should always ask, "qui bono?" Who benefits from this? The suits say that the public will. But, in the absence of honest inspection of Ambrotose, et al, and of the personal testimonies, that is, to put it very kindly, questionable.
Others who might benefit would be those pharmaceutical companies which have apparently been putting great pressure on Congress to subsume all food supplements under something like FDA control. They, no doubt, fear the competition. Getting food supplements under FDA control would seriously trim the feathers of companies like Mannatech.
Rumors have it that even orange juice is included. That makes good sense according to the logic of Texas and the FDA. Orange juice (and anything else with vitamin C) was discovered to, yes, cure scurvy on long shipboard journeys. Sailors would often die of scurvy because its cause (lack of vitamin C) was unknown. Citrus fruits were discovered to prevent scurvy. FDA logic tells us, then, that it would be illegal for orange juice vendors to claim that power for orange juice (they do not have to, of course, because sailors now already know that). So it makes sense, with that logic, to put all kinds of foods, not just "supplements", under FDA control. Every food, after all, helps to "cure, mitigate, treat, or prevent" hunger and starvation.
I have read at least half a dozen nutrition and health newsletters. Every single one of them promotes this or that supplement with a claim that it helps the person taking it to "cure, mitigate, treat, or prevent" some unhealthy condition. They are not the manufacturers of the nutrients, but they do stand to benefit from the success of these claims by selling such newsletters. Is this, too, illegal?
One gets the impression that the government does not want to look at the street evidence, that some motive is preventing such investigation. The FDA has gotten out of control (or under the control of Big Pharma) and needs to be reined in back under We, the People.
In any event, the positivist view of law lends itself to abuse because it has difficulty distinguishing between legalism and justice. Positivist law is seen as defining justice rather than justice defining law -- just as in New Testament times when Pharisaic legalism killed the meaning of the law, prompting Jesus to remind His people that the law was made for man, not man for the law. Legalism always leads to the suffocation of life. Life must break through and assert itself. The only way to ensure that is restoration of our Biblical society, Biblical worldview, and Biblical form of government.
There is also the religious question. The "manna" in Mannatech refers to the bread with which God fed the Israelites for forty years in the desert. Mannatech is led largely by Christian people. Christians least of all people should get a pass when they subvert truth. But one has to ask whether the opposition to their success might be motivated in some part, not by a desire for justice, but by the anti-Judeo-Christian bias fostered in the media, in politics, and (just perhaps) in some legal corporations.
If the accusations are true, if Mannatech has scammed the people, if Mannatech is promoting false testimonials, if their products are not effective as promoted, then shut it down.
But on the other hand, if the State of Texas or Lerac, et al refuse to examine the evidence on the street and to weigh that in the balance in front of the jury, or, if the evidence on the street proves to be valid and substantially positive, then it would be my hope that if this comes to trial, the jury, if necessary, will stand up to its duty, nullify the laws under which Mannatech is being prosecuted, declare the Defendants innocent, and (if juries can do this) recommend substantial changes to the law.
Life must assert itself against legalism.
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