Dairy Farmers Did Not Break Law by Stating Milk Products Prevent Colon Cancer

Received an email on Friday from the Dairy Farmers of Canada's Executive Director Caroline Emond.

In it she expressed her concern that my blog post from June 29th was inaccurate. That blog post assumed that making the claims that milk products prevent colon cancer and type 2 diabetes, improve bone health, and confer healthy blood pressure wasn't legal by way of the laws guiding nutrient function claims which clearly state,

"Nutrient function claims may not refer to the treatment, prevention or cure of a Schedule A disease; or claim to treat, mitigate, or prevent a disease, disorder or physical state; or claim to correct, restore or modify an organic function [3(1) and 3(2), FDA]. Such claims are considered to be drug claims (see Drugs vs. Foods)."

But there's a catch as Ms. Emond's letter clearly lays out, which means that at least in Canada, it would seem the Dairy Farmers' claims are allowed.

Ms. Emond points out that according to the letter of the law, if the audience for the claims being made isn't the general public, the rules don't apply.

In her letter she quoted the 1987 decision of a judge from the Alberta Court of Appeals who stated,

"By including the word "general" as a modifier in s. 3(2) the broad term "public" is narrowed. The section totally prohibits advertisement to the general public. It is designed not to interfere with advertisements to the "specialized" professional medical community in specialized trade and professional publications, such as medical journals, pharmaceutical journals and so on."

I responded to Ms. Emond immediately and asked her if I could share her entire letter with the readers here, but since I have yet to hear back I wanted to publish this clarification which ultimately has me scratching my head about the fact that it's potentially legal in Canada to advertise and promote any claim you want to a community of influencers.

I was also curious about the judge's decision so I Googled the case law she cited. That decision was made in a case whereby the defendant offered to sell a product to an individual undercover food and drug inspector to who he described the product as being a treatment or preventative for heart disease, diabetes, hernias and ulcers. The judge's ruling, while it included the paragraph up above, also stated,

"The critical aspect is that the offer is made indiscriminately to everyone and anyone without regard to who may accept it."

and he continued,

"In this case there is no evidence that the accused made an indiscriminate offer to the general public; rather, her representations were directed at a specific individual."

I do wonder how this judge would feel about a booth placed in a room, which while filled no doubt with many health professionals and researchers, also included members of the general public, and certainly was not aimed at a specific individual.

(I have appended a link to this post to the original as well.)