Friday, 16 October 2009

30 Defending the Go-Between

June 16: The go-between who supplied vitamins for the Purification Rundown is a victim of France’s obsession with prosecuting ‘cults’ and its refusal to respect European law on food supplements, her lawyer argued.

The first of the defence lawyers to make his closing speech was Maître Christian Beucher for Marie-Anne Pasturel.

It was a highly technical presentation, which had little to do with Scientology as such, focussing more on the law regarding food supplements – and what Maître Beucher said was France’s failure to respect European law in this area.

Pasturel was charged with the illegal practice of pharmacy for having acted as G&G’s intermediary in France, the company that sold the vitamins and minerals required for Scientology’s Purification Rundown.

The prosecution – and the lawyer for plaintiffs the National Council for the Order of Pharmacists (CNOP) – said the vitamins were used in such high doses in the Rundown that this qualified as medical use.

But for Maître Beucher, the relevant law did not even apply in this case.

“She is here because she got a commission for the sales of these products,” he said. But her role had been quite irrelevant so far as that charge was concerned, Beucher argued.

For while all Mme Pasturel had done was supply the vitamins, the charge against her mentioned the Purification Rundown as if she had somehow been involved in that part of the process.

She was clearly a victim of a decision to go after Scientology in the courts, he said. For what kind of message was the indictment really sending?

“Food supplements are used by cults, so you should avoid consuming them: the people who sell food supplements are obviously charlatans.

“I’ve been hearing that for 25 years, even if I find these remarks completely out of order,” he added.

And the alleged offence, as set out in the indictment, did not actually exist, said Beucher.

For whatever legal gymnastics you chose to employ, the law forbade the unauthorised sale or dispensing of these products to the public, not their “distribution” (diffusion) – the word used in the indictment against Mme Pasturel.

It was easy to see why the charge mentioned neither the sale nor the dispensing of the goods in relation to Mme Pasturel – because she had done neither.

The sale had been conducted directly between G&G and Mme Malton, who had said as much in a statement to investigators.

“I bought them by correspondence from G&G,” she had said. This was a direct order by correspondence by Mme Malton to G&G, who received the products directly from the G&G salesman, with an invoice which she paid directly.

It had been Aline Fabre, who had taken care of her progress through the Purification Rundown, who had given her Mme Pasturel’s telephone number so she could place the order.

All Mme Pasturel had done was take down Mme Malton’s details and send them off on an order form to G&G in the Netherlands, said Beucher.

She was never the company’s representative or its commercial agent: she bought nothing and she sold nothing on, he added.

His client could not therefore be said to have sold these products: and the fact that someone had given out her address – an address that anyone could have found on the Internet – constituted neither the sale nor the dispensing of the products in question.

The prosecution had implicitly acknowledge as much, Beucher continued, and nor were they pursuing a charge of complicity in the illegal exercise of pharmacy.

Even the investigating magistrate, in his indictment, had noted: “The administration or self-administration of any kind of substance does not of itself, in any event, constitute a criminal offence.”

But the indictment nevertheless referred to the regular “issue and supply” (la délivrance et de l’approvisionnement) of these products – despite the fact that Mme Pasturel had never delivered or supplied anything.

French law out of step with Europe

Over the years, said Beucher, he had represented many clients accused of selling health products illegally in France.

“My clients were told that these products were forbidden – and if they weren’t forbidden they were not authorised,” he said.

But France’s heavy-handed laws in this area were out of step with European legislation, he argued.

“I always argued that unless they were specifically banned, the court couldn’t pursue them,” he said.

And after years of legal battles, a ruling in February 5, 2004 at the European Court of Justice had vindicated his position.

It had effectively ruled that France could not take this “prove you’re innocent” approach to people selling health products, he said.[1] “You can’t convict people in the absence of a text.”

It had nevertheless taken the French courts another three years before they digested this ruling, said Beucher.

And when it came to certain products, he still got the impression that the French courts were moving the goalposts.

“A certain number of prosecutors and investigating magistrates are saying they are medicines when for years they were calling them food supplements,” he said.

Because of this tension between French and European law at the time of the alleged offences, no one – least of all the defendants – could have known what was legal or illegal in this area, Beucher argued.

The courts in France could of course have opted to set out clear definitions for what constituted a food supplement rather than a medicine, but French law never actually tackled that task, he said.

“We had to wait for Europe to impose a clear definition of what a food supplement was,” he said, which had come in a 2002 European directive.

Was the court really incapable of distinguishing between a banana, a medicine and a Vitamin C tablet, he asked?

Beucher talked of what he called the “scandalous jurisprudence” in the French courts, which continued to ignore the effect that the European directive had on French law.

“France is, after all, the worst pupil in Europe,” in this regard, he added. “France has not respected the 2002 European directive on food supplements.”[2]

It should have been integrated into French law by July of the following year, said Beucher. “It took until 2006, four years later, when France suffered a very heavy fine, before they brought their legislation into line.”

And an important point about the European directive, said Beucher, was that it expressly authorised the use of vitamins as food supplements.

The reports by the court-appointed experts had made much of the fact that the doses in the Purification Rundown far exceeded the daily recommended doses.

“So we have a situation that certain food supplements, over a certain limit, are not food supplements,” he said.

But these were minimum recommended doses, not maximum; and the relevant law applied to the labelling of foodstuffs, not food supplements: so to build a case on that basis was to apply the wrong regulations, Beucher argued.

Yet it was on this basis that the reports from the court-appointed experts, and the testimony from the food safety experts at France’s health products watchdog, the AFSSAPS, had based their case.

Even an AFSSAPS-commissioned study on the recommended daily nutritional intake, which set out the safe levels of vitamins, did not support the case that the doses involved in this case were dangerous.

This book, said Beucher “establishes that the doses taken in the products being investigated never come anywhere near exceeding the safe-dosage level and so poses no risk to health.”[3]

Europe ruling changes everything

The argument of the AFSSAPS’ representative that the 2002 European directive changed nothing in this area was simply wrong, he said.

In fact the only relevant text on food supplements was the 2002 directive: and that worked in his client’s favour.

For if something met the definition of a food supplement it could not also be defined as a medicine, which was the basis of the charge of the illegal practice of pharmacy.

The relevant article in French law, L 5111-1, reflecting European law, set out a detailed definition of what constituted a medicine, based on six criteria:
  • the composition of the product;
  • its pharmacological properties;
  • how it was used;
  • the extent of its diffusion;
  • consumer knowledge of the product;
  • the associated risks.
And the relevant jurisprudence meant that the court had to take each product on a case-by-case basis, Beucher argued.

The report by the court-appointed expert M. Pepin had pointed to the fact that the products in question were being presented with details of composition, dosage and with warnings about their use.

But he was forgetting the European directive made it clear that the mere fact that a product was presented with recommended dosages did not disqualify it from being a food supplement.[4]

In fact, the directive obliged producers of food supplements to set out a minimum of information on precisely these points: stipulating a product’s composition, dosage and with warnings about use.

The packaging on the G&G products complied with those standards, argued Beucher: nor was there anything in the labelling that referred to treatment of, or a cure for, any illness.

Another problem with the court-commissioned report by M. Pepin – at least from the prosecution point of view was the way it had described the products in question, said Beucher.

In his argument that the products were medicines, Pepin had written that they were intended to “restore or correct potential vitamin deficiencies…” said Beucher.

“That is totally absurd – because that is the very definition of a food supplement.”

And the AFSSAPS had made much the same mistake, he argued.

Several experts and lawyers during the trial had argued that over a certain dose, a food supplement became a medicine, said Beucher.

In fact, the defining criteria were far stricter, he argued. Beucher cited a January 15, 2009 ruling by the European Court of Justice that said:

…a product may be classified as a medicinal product by function where, having regard to its composition – including its content in active substances – and if used as intended, it is incapable of restoring, correcting or modifying physiological functions.[5]

He also cited a subsequent French Supreme Court (Cour de Cassation) ruling from October 2007 that stated: “The classification of a product as a medicine by function depends on precise criteria that are as objective as possible: the court’s discretion is limited.”[6]

So, for example, simply to say that a product had a pharmacological effect did not make something a medicine, he said. “Nearly every plant has a pharmacological property rosemary, lavender, mint.”

That was why we took extracts from these plants to make medicines: that was why we were pillaging the Amazon in search of plants that might hold the secret to as-yet undiscovered pharmacological agents.

What these rulings meant, Beucher argued, was that it was for the CNOP, the professional body that wanted to restrict the sale of these products, to justify why the sale and dispensing of each one should be restricted.

This it had failed to do however, contenting itself with references to the risks associated with high doses. But nowhere had there been any explanation of just what these dangers were.

“We need to stop this hypocrisy”

“There has been a lot of talk about maximum daily doses,” he recalled. “But relative to what? To whom? We don’t know.”

It was worth remembering too that both the French and the European authorities considered that up to one gramme of Vitamin C a day presented no risk to one’s health. Taking any more was pointless because the human body would simply expel anything it did not need in one’s urine.

And while there had been talk of overdoses of Vitamin D, the tablets were supplied in modest doses – and were nothing compared to what you would get after a few weeks in the sun.

The fact was, many of the products in question were already freely available in shops across Europe, said Beucher.

“It is perhaps time we realised that France is in Europe – and that we can’t ban a product in France that is freely available in Europe,” he added.

“There are no more borders, and these products that are produced in other countries – anyone could import them. We need to stop this hypocrisy.

“We are pleading this case in 2009, as if we were not in Europe; as if there were no Internet; as if we were alone in the ‘Kingdom of Europe’,” he argued.

Summing up, Beucher stressed that his client, Anne-Marie Pasturel had done nothing that corresponded with the charge of illegal practice of medicine.

So far as she was concerned, there had been no “sale” of the products, there had been no “dispensing”; the indictment had not even used the relevant words in the text of the law, he said.

And when it came to an examination of her motives, the case against his client was equally weak, he said.

Mme Pasturel had lived in England and the Netherlands, where the law in this area was far more liberal, said Beucher.

There had been remarks about how the Netherlands was the country where soft drugs were freely available for sale: but here we were talking about products that were freely available for sale in shops across Europe.

“She considered that if it was on sale freely in Europe then it would be in France,” said Beucher. “And the fact that she earned some small commission does not constitute fraudulent intention.”

His client had been the victim of an unjustified and unfounded legal pursuit and should be acquitted, he added.

She had been caught in a wider battle between those in France who were trying to stop people from taking control of their own health.
[1] “The French procedure for prior authorisation for the marketing of foodstuffs for human consumption enriched with nutrients, manufactured and marketed in the member states, hinders the free movement of goods.” From the official Court press release on the case here. The actual ruling, in French, is here.
[2] The full directive is here (June 10, 2002), but here is the relevant definition: (Article 2, a): “…‘food supplements’ means foodstuffs the purpose of which is to supplement the normal diet and which are concentrated sources of nutrients or other substances with a nutritional or physiological effect, alone or in combination, marketed in dose form, namely forms such as capsules, pastilles, tablets, pills and other similar forms, sachets of powder, ampoules of liquids, drop dispensing bottles, and other similar forms of liquids and powders designed to be taken in measured small unit quantities…”
[3] Apports nutritionnels conseillés pour la population française. 3rd edition, edited by Amboise Martin, (Broché, 2000). Tec & Doc Editions.
[4] In fairness to Professor Gilbert Pepin, his report was delivered to the investigating magistrate on August 12, 1999: years before the 2002 European directive. So he could not have forgotten a directive that did not yet exist. To what extent the subsequent European legislative undermines his report of course, is another question.
[5] Case number C‑140/07: Hecht-Pharma GmbH v Staatliches Gewerbeaufsichtsamt Lüneburg. See here for a summary of the judgement.
[6] In it, the National Council for the Order of Pharmacists (CNOP) – plaintiffs in this case – had appealed against an appeal court’s release of a defendant who had been selling 1,000-mg tablets of Vitamin C. October 30, 2007, Cour de Cassation.

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