Neal D. Fortin

Food Regulation


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that may imply a drug claim. Chapter 5 returns to this topic in detail. For now, just be sure to understand two straightforward ways a product may be regulated as a drug, subparagraphs (B) and (C), in the drug definition:

       Non‐food that is intended to affect the structure or any function of the body.

       Intended use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals.

      2.3.1 Products Ordinarily Considered Foods

      A claim indicating an intended use in the diagnosis, cure, mitigation, treatment, or prevention of disease is a drug claim. There have been a number of cases where products—ordinarily considered foods—were classified as drugs because of the product’s therapeutic claims:

       Honey10

       Vinegar and honey11

       Tea12

       Water13

       Blue‐green algae14

       Mussels15

      2.3.2 Evidence of Intended Use

      Unlike the definition of “drug,” the FD&C Act definition of “food” lacks any reference to intent. Nonetheless, a court may consider the intended use of the product in considering whether it is a food. However, a manufacturer’s subjective intent that a product should not be consumed will not allow the product to avoid the reach of the FD&C Act if the product looks like food and smells like food.

      2.4.1 Products Intended to Be Processed into Food

       Green coffee beans—It makes no difference if the beans require further roasting and processing before they would be ready for consumption.18

       Live beef cattle—The edible tissues of live calves constitute “food” as defined by the FD&C Act and are therefore subject to the adulteration provisions of the act.19

      2.4.2 Products No Longer Fit for Food

      2.4.3 Packaging Materials

      DISCUSSION QUESTIONS

      1 2.2 Bottled water. Within the meaning of the FD&C Act, could bottled water be characterized as a food, a drug, or both? How? Would your answer change if the product were cherry juice concentrate?

      2 2.3 Blackboard chalk. When would blackboard chalk be a drug?

      3 2.4 “SkyHigh” brand glue is not only efficacious as glue, but is widely known to induce a high when sniffed. The manufacturer advertises the adhesive properties of the glue heavily in magazines that are popular in the drug culture. Can FDA regulate the glue?

      4 2.5 Statutory drafting. Is the definition of “food” good statutory drafting?

      5 2.6 Coffee is often consumed for its stimulant effect. Coffee is not con sumed for its nutritional value. If a manufacturer promoted its coffee for the stimulant effect, would it be a drug?

      6 2.7 Caffeine is regulated as an over‐the‐counter drug when sold as a stimulant pill. 21 C.F.R. § 340. However, FDA does not regulate caffeine added to foods as a drug—even when the food is promoted as a stimulant. How do you reconcile the agency’s decision? Is this exception within the scope of the structure/function exception for foods within FD&CA § 201(g)(1)(C)?

      7 2.8 Putrid and decomposed food that is clearly inedible would not be called “food” in everyday speech. What would be the regulatory consequence if putrid and decomposed food were excluded from the definition of food?

      8 2.9 Vitamins and minerals without therapeutic claims have generally been classified as foods. However, in the 1970s, reports of human toxicity emerged from consumption of large doses of the vitamins A and D. These fat‐soluble vitamins create special concern because they can accumulate in the fatty tissue. To deal with this problem, in 1972 and 1973, FDA promulgated regulations classifying certain high dosages of vitamin A and D as drugs and requiring that they be sold by prescription. 37 Fed. Reg. 26618 (Dec 14, 1972) and 38 Fed. Reg. 20723 (Aug 2, 1973). However, in National Nutritional Foods Ass’n v. Mathews, 557 F.2d 325 (2d Cir. 1977), the court questioned FDA’s approach and found FDA’s administrative record incomplete. In particular, the court questioned whether FDA could classify vitamins as drugs when no intended therapeutic use was offered by the vendors, the labeling, or any promotional material. The court upheld the regulations, but FDA nonetheless later rescinded them. 43 Fed. Reg. 10551 (Mar 14, 1978).

      Notes

      1 1 21 U.S.C. Sec. 321 et seq.

      2 2 Statutory citations used in this material generally are to the FD&C Act statutory sections. The citation within the brackets is the U.S.C. number. The United States Code (U.S.C.) is organized into subject matter titles with numbering that is unique from the section numbering in the statutes. For example, section 201 of the Food, Drug, and Cosmetic Act is codified