Thursday, January 12, 2006
01/12/06 - VITAMIN LAWYER UPDATE e-MEMO
On January 5th the US president signed another complex and confusing law that has a serious threat to Internet communications buried in it.
The law is The Violence Against Women and Justice Department Reorganization Act, and the relevant section is 113. It states:
"Whoever...utilizes any device or software that can be used to originate telecommunications or other types of communications that are transmitted, in whole or in part, by the Internet... without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person...who receives the communications...shall be fined under title 18 or imprisoned not more than two years, or both."
It is my opinion that this restriction will most likely not stand up against constitutional scrutiny. There is law backing anonymous political statements, reviewed by Justice Thomas in '95 - http://straylight.law.cornell.edu/supct/html/93-986.ZC1.html
"After reviewing the weight of the historical evidence, it seems that the Framers understood the First Amendment to protect an author's right to express his thoughts on political candidates or issues in an anonymous fashion."
I'm sending this alert out so that people are aware of this new law and can more carefully express themselves. For example, if you were to post an anonymous comment about, say, some company CEO, you might want to include some sort of disclaimer, such as "This statement is being made to express my opinions and understanding of the truth in the matter; it is not intended to annoy, abuse, threaten, or harass any person."
I still don't understand why Congress doesn't get it -- the First Amendment states explicitly "Congress shall make no law..." abridging freedom of speech -- "no law" means just that: NO LAW.
Here is a cogent comment I received from a knowledgeable source:
“It turns out that the statute can only be used when prohibiting the speech would not violate the First Amendment. If speech is protected by the First Amendment, the statute is unconstitutional as applied and the indictment must be dismissed. An example of this is United States v. Popa, 187 F.3d 672 (D.C. Cir. 1999). In Popa, the defendant called the U.S. Attorney for D.C on the telephone several times, and each time would hurl insults at the U.S. Attorney without identifying himself. He was charged under 47 U.S.C. 223(a)(1)(C), and raised a First Amendment defense. Writing for a unanimous panel, Judge Ginsburg reversed the conviction: punishing the speech violated the Supreme Court's First Amendment test in United States v. O'Brien, 391 U.S. 367 (1968), he reasoned, such that the statute was unconstitutional as applied to those facts.”
Monday, January 9, 2006
This is your periodic Vitamin Lawyer update memo, provided to my client base and others interested in dietary supplement matters. If you don't want to receive such occasional messages, please reply to this email with "remove" in the subject line.
This issue covers:
1. New FDA Allergy label rules
2. Media Release: New challenge from credit card processors
3. Vitamin Lawyer biography
Happy new year!!
Ralph Fucetola JD
1. FDA Allergy Label Rule
The Food Allergen Consumer Protection Act went into effect 01/01/06. The Act is at: http://www.cfsan.fda.gov/~dms/alrgact.html
On 12/14/05 a Guidance was published at: http://www.cfsan.fda.gov/~dms/alrguid2.html
The new law requires disclosure on the label of any ingredient including a major food allergen: "The term `major food allergen' means any of the following: (1) Milk, egg, fish (e.g., bass, flounder, or cod), Crustacean shellfish (e.g., crab, lobster, or shrimp), tree nuts (e.g., almonds, pecans, or walnuts), wheat, peanuts, and soybeans"
There is no exemption for dietary supplements.
2. PR Web MEDIA RELEASE: Credit Card Processors Compliance Letters
January 9, 2006
On-line Lawyer Reports Internet Merchants May
Now Need Credit Card Website Compliance Letter
Newton, NJ: Ralph Fucetola, J.D., confirms reports that major credit card companies have recently demanded its dietary supplement and online pharmacy merchants obtain regulatory compliance letters from an attorney expert in the field.
Over the past two weeks, Counsel Fucetola has learned from certain clients who prefer to remain anonymous that MasterCard has been contacting merchant services and vendors with on line pharmacies and nutritional websites. The credit card company now appears to require merchants to provide a form letter from a qualified attorney stating that their websites comply with all government rules and regulations. Additionally, they must acknowledge an attorney will review the site annually to assure continued compliance.
Ralph Fucetola, a.k.a. as The Vitamin Lawyer (www.vitaminlawyer.com) has been retained by a number of merchants to review specific websites and provide the required documentation. As an attorney of 34 years, he has been reviewing web content for regulatory compliance for over a decade. He is available to consult on a retainer basis; rates are reasonable and due to Internet accessibility, clients can expect a timely response. Please contact him at firstname.lastname@example.org.
For general FDA compliance, the Vitamin Lawyer (www.vitaminlawyer.com) offers a service that allows the site to display the Vitamin Lawyer Oversight Compliance Seal.
3. Biography: Ralph Fucetola JD received a B.A. with Distinction from Rutgers University, 1967 and a Juris Doctor (Doctorate in Law) from Rutgers Law School, 1971. He practiced law for 34 years, specializing in Nutrient and Alternative Health Law. Counsel Fucetola has been widely recognized as a leading attorney in the field, receiving numerous awards, including a Citation of Merit from the National Health Federation (www.thenhf.com) in 1979 and a Meritorious Service Award (from the institute for Health Research, www.inhere.org) for his role in the 1995 DHEA Cases on behalf of the Life Extension Foundation. Counsel Fucetola limits his consultancy to claims, advertising and label review, asset protection, and consulting with marketers, consumers, advocates and local attorneys regarding Health Care Freedom issues, petitions and litigation.