Yes! How dare those jack-booted thugs infringe on my freedom to sell "Dr." Smacktoward's Bona-Fide Health Elixir and Youth Restoring Tonic (99% water, 1% radium) to anyone dumb enough to buy it!

It's turning into a dang police state, I tell you!

Whether or not you see this as a horribly unjust burden imposed by an unfeeling government will probably depend on whether you are the inventor or the person the inventor was planning on selling it to.

(The finance sector is even much worse than the FDA in this regard---for example Bernie Madoff was regulated, leading people to think their money was safe with him---but in some ways, the FDA is just as bad.)

Of course it can help, some. I'm not going to deny the obvious. But it's highly imperfect, and it often hurts.

In any case, the only hurdle to selling should be "does it do harm?", and "does it work as advertised?" can be determined later, if and only if there is any doubt among the consumers.

Elsewhere in consumerland, the product is sold, and independent testing is performed on off-the-shelf samples. Think Consumer Reports or Underwriters' Laboratories. If a problem is found, a recall may occur. If none are evident, the testing body grants its approval to use its trademarks on the product. People look for that trademark from the trustworthy third party.

If the FDA did not apply prior restraint, and tested products already available to the consumer, it could regulate the usage of the phrase "FDA-approved" and make perfectly safe everyone who buys only the medicines bearing that approval for the purposes which have been tested.

Laws don't operate under the principle of what should be, they are past agreements hammered out by negotiation, not logic. You don't get to say what the hurdle "should" be, that's already been agreed upon and set and it's unlikely to change because a few don't like it.

> Elsewhere in consumerland, the product is sold, and independent testing is performed on off-the-shelf samples. If a problem is found, a recall may occur.

Sometimes, sometimes not, it entirely depends on the law in those areas. Recalls don't help people who are dying from bad medication, the FDA's role is preventative, not reactionary.

> If the FDA did not apply prior restraint

That's their job, it's why they exist.

> and tested products already available to the consumer,

Then they'd be useless.

> it could regulate the usage of the phrase "FDA-approved" and make perfectly safe everyone who buys only the medicines bearing that approval for the purposes which have been tested.

Sorry, but their job is to protect people who don't have the information/brains to protect themselves, which in the field of medicine is practically everyone. This solution is simply a libertarian fantasy that has no chance of working in the real world. As the other poster said, see homoeopathy as an example, consumers aren't smart enough to not kill themselves with idiocy, even the rich ones like Steve Jobs.

Not true.

Do you really think I can start legally marketing a car seat or a crib without safety testing it first? Wrong.

http://www.cpsc.gov/en/Business--Manufacturing/Testing-Certi...

Federal law requires manufacturers and importers to test many consumer products for compliance with consumer product safety requirements. Based on passing test results, the manufacturer or importer must certify the consumer product as compliant with the applicable consumer product safety requirements in a written certificate that it must provide to retailers, distributors and, upon request, to the government.

My point was that it doesn't have to work in the way that the FDA (and other examples of other regulatory agencies) currently function, and your response did not address that.

"does it work as advertised?" No.

http://en.wikipedia.org/wiki/Homeopathy

The scientific community regards homeopathy as nonsense,[11] quackery[12][13][14] or a sham,[15] and homeopathic practice has been criticized as unethical.[16] The axioms of homeopathy are long refuted[17] and lack any biological plausibility.[18] Although some clinical trials produce positive results,[19][20] systematic reviews reveal that this is because of chance, flawed research methods, and reporting bias.[21][22][23][24] The postulated mechanisms of action of homeopathic remedies are not only scientifically implausible[21][25][26][27] but precluded by the laws of physics.[28]

"does it do harm?" yes, it exists, so it prevents people from accessing real medicine. It is a distraction.

Steve Jobs is a good example...

"Despite his diagnosis, Jobs resisted his doctors' recommendations for medical intervention for nine months,[174] instead consuming a pseudo-medicine diet in an attempt to thwart the disease. According to Harvard researcher Ramzi Amri, his choice of alternative treatment "led to an unnecessarily early death."[206] Cancer researcher and alternative medicine critic David Gorski "disagreed with Amri's assessment," stating, "My best guess was that Jobs probably only modestly decreased his chances of survival, if that."[209] Barrie R. Cassileth, the chief of Memorial Sloan–Kettering Cancer Center's integrative medicine department,[210] said "Jobs’s faith in alternative medicine likely cost him his life.... He had the only kind of pancreatic cancer that is treatable and curable.... He essentially committed suicide."[211] According to Jobs's biographer, Walter Isaacson, "for nine months he refused to undergo surgery for his pancreatic cancer – a decision he later regretted as his health declined."[212] "Instead, he tried a vegan diet, acupuncture, herbal remedies and other treatments he found online, and even consulted a psychic. He also was influenced by a doctor who ran a clinic that advised juice fasts, bowel cleansings and other unproven approaches, before finally having surgery in July 2004."

Yet, it still exists, and people are still buying it, using it, and buying into it. That is an indication the free market doesn't work in drugs. I can go on and on and on, but we need to be protected from ourselves.

I can make my own decisions. Just like 99% of rational people, who are able to judge for themselves that homeopathy is nonsense.

> Just like 99% of rational people, who are able to judge for themselves that homeopathy is nonsense

Rational people fall for pseudo science too, especially if it has a good salesperson behind it. Most people believe what others tell them without questioning. Very few look at the world skeptically. We need to blame the scam artist not the victim.

To the extent that approval requirements applied by the FDA under the Food, Drug, and Cosmetics Act do that with remedies (which aren't at issue in this case, as it is about a diagnostic device not a tretment), that isn't what happened here, as demonstrated by the fact that the FDA allowed 23andMe to continue to operate for years after issuing the June 2010 letter in which they first raised the issue that the PGS fell within the FDA's regulatory ambit and that various approvals were needed to continue marketing it the way it was marketed.

The "stop now" letter wasn't set until 23andMe stopped working with the FDA toward meeting the requirements, so 23andMe in fact was able, had it chosen to do so, to use the funds from selling its device to test it.

> and no one other than the inventor can test it, because the product cannot be sold until after it is tested.

The FD&C Act doesn't prevent covered "remedies" (etc.) from being sold before they are tested, it prevents them being sold to prevent, treat, or diagnose disease until they've been tested. Products can be sold for, e.g., research purposes before being approved (and, in fact, often are -- one of the suppliers to 23andMe and other genetic testing services was dinged by the FDA for knowingly selling to 23andMe and other genetic testing services products for diagnostic use which were not yet cleared for such use but which were allowed for research use [1].)

> In any case, the only hurdle to selling should be "does it do harm?", and "does it work as advertised?" can be determined later, if and only if there is any doubt among the consumers.

This approach was tried in the health space for many, many years, and the results were deemed unacceptable. Of course, you may have a different opinion of what is desirable than that which motivated the Food, Drug, and Cosmetics Act, but simply asserting that the rules should be different is unconvincing.

> Elsewhere in consumerland, the product is sold, and independent testing is performed on off-the-shelf samples. Think Consumer Reports or Underwriters' Laboratories.

That's true for some consumer products, and its not true for others, generally driven by perceived risk levels.

[1] http://www.fda.gov/downloads/medicaldevices/resourcesforyou/...

  > not under free market capitalism

As evidence (to anyone else reading---no point in dealing with dishonesty), I present Atlas Shrugged, The Fountainhead, and Objectivism.

Ayn Rand is the only modern philosopher who can even present a reality-oriented reason not to partake in a life of crime. i.e., a reason not based on religion or appleal to emotion or simple common sense (though common sense is also correct on this issue and worth having).

This is some interesting reading that goes deeper into Rand's writing: http://michaelprescott.freeservers.com/romancing-the-stone-c... All these are Rand's own words: "The first thing that impresses me about the case is the ferocious rage of a whole society against one man. No matter what the man did, there is always something loathsome in the 'virtuous' indignation and mass-hatred of the 'majority.'... It is repulsive to see all these beings with worse sins and crimes in their own lives, virtuously condemning a criminal..."

And in regards to Hickman's jury: "Average, everyday, rather stupid looking citizens. Shabbily dressed, dried, worn looking little men. Fat, overdressed, very average, 'dignified' housewives. How can they decide the fate of that boy? Or anyone's fate?"

"Other people have no right, no hold, no interest or influence on him. And this is not affected or chosen -- it's inborn, absolute, it can't be changed, he has 'no organ' to be otherwise. In this respect, he has the true, innate psychology of a Superman. He can never realize and feel'other people.' "

"He shows how impossible it is for a genuinely beautiful soul to succeed at present, for in all [aspects of] modern life, one has to be a hypocrite, to bend and tolerate. This boy wanted to command and smash away things and people he didn't approve of."

Well, if you want to be sure, read The Fountainhead and Atlash Shrugged.

The Fountainhead is actually an explicit repudiation of Neitzche (though it is more than that).

There is a Nietzschean hero in the book---and he is driven almost to suicide, and is completely destroyed.

Rand greatly admired one aspect of Hickman: that he wasn't influenced by other people; he was fully himself. The actual hero of The Fountainhead is like that, but rather than being a destructive parasite (of self and others), he uses his independence to achieve real goals and values in life in a way that does not vicitimize anyone.

He did blow up Cortlandt Homes; importantly, nobody was in the building and nobody was harmed, and he did it because the plans for the building were essentially stolen from him. He does it to make a point, which he does make.

A system of free-market capitalism is precisely that.

As you go beyond that, you have a system where citizens are coercing each other, with the government's sanction and backing (e.g. the FDA).

(I do mean this with a hint of jocularity.)

However, there is a logical chain of facts, starting with concrete perception of reality, that leads to the conclusion that we should establish government for protection from coersion.

Society can pass a law to coerce people---at its own peril.

> Society can pass a law to coerce people---at its own peril.

Look around, turns out it's not really perilous at all. It's actually the normal way the world works.

Including the fact that I live in a mixed economy.

I am not the one in conflict with reality.

Logic and talk are not meaningless. There are reasons that there once was an Enlightenment, ultimately culminating in the founding of the only contry originally based on the concept of individual rights---the United States.

And hopefully we can get there again. Greater than the tread of mighty armies, is the idea whose time has come.

Of course, to make the time come, much intellectual groundwork will have to be laid.

> Look around, turns out it's not really perilous at all. It's actually the normal way the world works.

It is perilous. For instance, the US is in a perma-recession. In the long run, this is quite dangerous.

You are explicitly advocating that we ignore reality. That should be enough to make my point and probably everything else I just said is just distracting from it.