Federal Court Upholds Seizure of Nutritional Supplement

On January 20, 2010 the Federal Court released its decision rejecting a challenge by a nutritional supplement manufacturer, TrueHope Nutritional Support Limited (Truehope), to a seizure of Truehope’s vitamin/mineral supplement, EMpowerplus, a product that had been sold and promoted as a treatment for mental illness. At issue was the constitutionality of the seizure provisions of Canada’s Food and Drug Act (FDA) and whether they were consistent with the provisions of section 7 and 8 of the Canadian Charter of Rights and Freedoms (Charter). Although not approved by Health Canada for the uses claimed, EMpowerplus had been sold for years in Canada prior to the seizure. Despite this clear contravention of the Food and Drugs Act, Health Canada had spent years discussing concerns about EMpowerplus with TrueHope, but had taken no steps to enforce the law until a seizure was made in 2003. Immediately following the seizure, David Hardy, a co-founder and operator of TrueHope, and TrueHope became joint Applicants in this action against the Attorney General of Canada and the Minister of Health. The heart of the challenge was the assertion that without a judicial process by which the lawfulness of the seizure could be tested beforehand and weighed against any increased health risks that might be caused to users, the seizure offended the users’ Charter rights. The Court found that Hardy had no credible basis upon which to make a Charter complaint, as he himself was not a user of EMpowerplus, and that he could not introduce evidence from users on the detriments suffered by them as a result of the seizure. Because of the somewhat narrow basis on which the claim was dismissed and the fact that the Court appeared to be sympathetic to the plight of TrueHope and the users of EMpowerplus, it leaves open a question whether the Court might have reached a different result if the proceedings had been brought by an actual user of the unapproved product. For a copy of the full reasons for judgment of Justice Campbell in Truehope Nutritional Support Limited and David Hardy v The Attorney General of Canada and The Minister of Health 2010 FC 63, see: http://decisions.fct-cf.gc.ca/en/2010/2010fc63/2010fc63.pdf Summary by: Sue Diaz