Companies whose health claims are banned by the European Commission should take the authorities to the courts for breaching the right to freedom of speech, according to a US attorney.

Jonathan Emord of Washington DC-based Emord & Associates said banning claims under the EU Nutrition & Health Claims Regulation on the basis the science supporting them was not conclusive could fall foul of the European Convention on Human Rights, which guarantees the "freedom to hold opinions and to receive and impart information and ideas without interference by public authority."

Emord, who said he had successfully taken on the US Food & Drug Administration several times in the past over the right to make health claims in America, described the implementation of the regulation as the equivalent of a "nutrition science Dark Age descending on Europe."

"European Food Safety Authority (EFSA) opinions rejecting health claims when adopted by the Commission prevent information indispensable to the exercise of informed consumer choice from reaching European consumers," he argued. "EFSA thereby establishes a state orthodoxy on science in the market in place of free scientific exchange and debate. It is denying consumers information needed to answer a question that to them is more urgent than the most pressing political debate: what should my family and I eat to enhance our health and reduce our risk of disease?"

Emord, who was the addressing the recent NutraIngredients Health Claims 2010 conference in Brussels, said such "paternalism" by the European Commission should not go unchallenged. "Although EFSA's decisions alone are likely not triable, when those decisions are adopted and enforced by the European Commission or by member states they are law and may be attacked either in a court of a member state for referral to the European Court of Justice or the European Court of Human Rights," he said.

The law was weighted against "commercial speech," he admitted, but said there was a strong case to argue that health claims were more than just marketing slogans. "Legal outcomes in commercial speech cases most often turn on the extent of margin of appreciation afforded the government, whether the restriction is necessary in a democratic society, and whether the government action is a proportionate response. In the case of health claims the information is basic nutrition science concerning the potential of a food element to affect health, a matter of considerable public concern and scientific debate."