Lawsuit Challenges Canada's Regulations of Supplements, Vitamins

By Josh Long

CANADA A federal court in Canada has been asked to find the definition of "drug" under the country's Food and Drugs Act is overbroad and excludes substances such as food and naturally occurring dietary food supplements and vitamins.

The law is unconstitutional, depriving consumers of their right to make choices in the areas of personal health and medical health, alleges the 51-page lawsuit.

The complaint was brought by a colorful cast including a Canadian actor and naturopathic doctor who has been fighting with the government for years.

David Rowland, one of the plaintiffs who is seeking $500,000 for damage to his reputation and loss of income, said Health Canada the department of the government of Canada with responsibility for national public health is being charged with 22 counts of violating the Constitution Act, 1867, the Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Statutory Instruments Act.

The plaintiffs are collectively seeking tens of millions of dollars in damages (for loss of sales and income, mental distress and damages for violations of their Charter rights) plus a number of findings, including a declaration that Canada's "Natural Health Products Regulations" are invalid.

Lawsuit: Supplements Shouldn't Be Treated as Drugs

"The Plaintiffs state, and the fact is, that dietary (food) supplements (like food) and vitamins, are not 'drugs," and should not be treated as such," assert the plaintiffs, who describe themselves in the lawsuit as "consumers, producers, distributors, and vendors of dietary food supplements and vitamins".

Dietary supplements and vitamins can easily be distinguished from drugs, the plaintiffs assert in the complaint, including the fact that the former are not dangerous.

"Nutrients are safe," the lawsuit declares. "According to Canadian Poison Control Statistics, there has never been a single documented fatality caused by taking vitamin, mineral or amino acid supplements or anything classified as a 'natural health product' by the Defendant Ministry of National Health and Welfare."

Besides the Ministry of National Health and Welfare, other defendants in the lawsuit include the Attorney General of Canada, the Ministry of Public Safety and Emergency Preparedness, Royal Canadian Mounted Policy and Queen Elizabeth II, the head of state.

Sean Upton, a spokesman for Health Canada, said Health Canada doesn't comment on matters pending before the courts. The Canada Department of Justice didn't return a phone call Thursday.

In an email Thursday, Rowland said the defendants intend to file "a motion to strike" but haven't done so yet.

The Sept. 21 lawsuit was filed in the Federal Court of Canada in Toronto, Ontario.

Canadian Actor Claims Mental Distress

One of the plaintiffs is Nick Mancuso, a 64-year-old Canadian actor who had the starring role in the 1980s NBC action series, Stingray. He is seeking $500,000 for mental distress, pain and suffering, and breach of his Charter rights. Mancuso has relied on dietary food supplements and vitamins throughout his life, but the "current scheme" adopted and enforced by Defendants has eliminated the availability of many safe products, causing the actor mental anguish, the lawsuit alleges.

Rowland is described in the complaint as an "innovator in 'alternative' medicine" who founded the Edison Institute of Nutrition, Canadian Nutrition Institute and Nutritional Consultants Organization of Canada. Another plaintiff, The Results Company Inc., markets and distributes the Vitamost line of dietary supplements that Rowland formulated, according to the complaint.

The lawsuit blames a "product licensing scheme" at Health Canada for hurting the company's sales, jeopardizing its ability to stay in business. The Results Company is seeking $3.4 million for loss of sales and income.

The complaint attributes an "unprecedented drop in sales" to "Health Canada's discriminatory NPN licensing scheme."

"Health Canada has refused licenses for some Vitamost products, has withheld licenses for others, and made it cost prohibitive even to apply for licenses for most products in the Vitamost line," the plaintiffs contend. "[E]ven if the NPN licensing scheme is abolished, it is doubtful that TRC could even rebuild its sales to former levels. The dietary supplement market is being taken over by mass merchandisers whose simpler formulations are favoured by NPN licensing at the Ministry of Health and Welfare."

Doctor Has Long Feud with Health Canada

Other plaintiffs include Life Choice Ltd. (seeking $12.4 million for loss of sales and income) and Eldon and Agnesa Dahl (collectively seeking $7.4 million for loss of salary and income, mental distress and damages for violations of their Charter rights). Eldon Dahl, a naturopathic doctor and convicted criminal, has had a number of encounters with Health Canada dating back to the 1980s, according to the lawsuit.

Nearly four years ago, his house was searched by authorities looking for vitamins and a gun was pointed at his wife's chest, according to the lawsuit and letters from Dahl posted online. Dahl has blamed the government for destroying his reputation and business. In a Nov. 11, 2009 letter to the Social Affairs Committee, Senate of Canada, he maintained Health Canada "cannot be trusted with the powers it already has."

Josh Long is Legal and Regulatory Editor with VIRGO's Health & Nutrition Network. He can be reached at [email protected].