Letter to Representative Bart StupakDecember 21, 2005
Honorable Representative Dear Mr. Stupak, I am a cherry farmer in Antrim County. I am writing to you to request your assistance and support. Our farm grows and sells red tart cherries. We have two farm markets (King Orchards) and we have a mail order business selling cherry juice concentrate and tart cherry products. Recently we received a warning letter from the FDA concerning our Internet marketing claims of health benefits of tart cherries. The FDA says if we make available to the public information about the research into health beneficial compounds in tart cherries then we have to register cherries as a drug. Montmorency tart cherries have been grown in the United States for over 400 years. Michigan grows over 70% of the nations' Montmorencies. Cherry growers assess themselves a small amount per pound to fund research and marketing activities through the Michigan Cherry committee and the Cherry Marketing Institute, a PA232 company. In the late Nineties research funded by the Michigan Cherry Committee at Michigan State University discovered many compounds in tart cherries that are known to be anti-inflammatory. When news of this research reached the public a great new market for tart cherries began to grow. Further research at the University of Texas Medical Center and at several other research labs continued to bolster the idea that Montmorency Red Tart Cherries are a very healthy fruit and that they contain compounds that relieve pain from inflammation, arthritis, gout, and other diseases. Armed with this research marketers began to market tart cherry juice concentrate and dried cherries to new customers throughout the United States and Internationally also. Tart cherries that have been in chronic oversupply were now reaching a much broader market place and the impact on the cherry industry has been profound. A three and four year backlog of cherry juice concentrate has been used up. Cherry processors are now scrambling to get juice cherries and to run their concentrators at capacity. The price of a gallon of cherry juice concentrate has gone from $11.00 in the late nineties to a minimum of $28.50 per gallon in 2005 with the supply for 2005 crop completely spoken for at pack time. Juice cherries that traditionally were sort outs and poor quality cherries of little or no value brought $0.24 per lb in 2005 equal to the price offered for much of the 2005 overall crop. Cherry juice marketers have been experiencing 100% growth per year and many new entrepreneurial companies have sprung up marketin cherries. All of this momentum has spurred interest in further research and the Cherry Marketing Institute is in the process of getting human health trials underway and funded. The warning letter from the FDA went to 33 companies 17 of them in Michigan. There are two key points involved. One, the FDA has determined that a web site that has a sales component is "labeling" and therefore subject to the provisions in Federal Food, Drug, and Cosmetic act section 201(g)(1)(B) of the Act, 21 USC(g)(1)(B). And two, that by making general health claims and quoting research conducted at well known respected research facilities then we must register cherries with the FDA as a drug, or get all of our statements pre approved by the FDA. We feel that the FDA has overstepped its authority by determining a web site to be labeling for the purpose of regulation. Further we feel strongly that we have a constitutionally protected right to present factual information including testimonials on our website and in our marketing. When the FDA requires us to register as a drug the government is placing a prior restraint on our free speech. I hope that you agree with me that the FDA is denying our rights under the constitution and that you will intervene on our behalf and instruct the FDA to abandon its' position that a pure food product is a drug if factual research is used to market it. Please be aware that the FDA has not said that we have are misleading the public or that our statements are untrue. Rather the FDA has said that the government has the right to pre approve our speech regarding the marketing of our food products. I know that you have acted on behalf of the cherry industry many times to help with government purchases of surplus cherries, and I am thankful for your support. I have already taken up this issue with your very capable assistant Mr. Ben Kennedy, but I am afraid that I did not effectively make my case to Mr. Kennedy. The FDA has not only caused serious economic harm to King Orchards, but rather the government has thrown a wet blanket on one of the brightest and most exciting developments in Michigan agriculture. Currently there is a bill before your House Energy and Commerce Committee. It is HR4282 the Health Freedom Protection Act. I feel we shouldn't need another law to protect free speech, but I also feel that this bill will immediately put a stop to FDA abuses. I hope that you can lend your support to this bill or to some other action that will let us continue to grow and sell cherries to consumers who want to buy them for their wonderful health benefits. All Michigan tart cherry growers and processors will get a lift if the cherry marketers can get back to the business of spreading the word, supported by research, about Montmorency tart cherries.
Thank you for your time and support,
John F. King also see:
Why is the FDA Picking on Cherry Growers? |