I arrived at the International Herb Symposium somewhat flustered and awkwardly carrying my luggage in my arms since the handle on my suitcase had broken. Not for the first time in my life, I thought that I ought to have packed lighter. Nevertheless, I couldn’t fail to notice how lovely the setting was: Wheaton College, with its beautiful quad, reminded my of my own time at college and made me feel right at home, as did the folks who welcomed me in at registration. I was pretty psyched to be there, as this was my first time attending the IHS, and the list of teachers and classes made me wish for Hermione Granger’s Time Turner: Should I take “Stress Resiliency with Plants” with Mindy Green, “Medicinal Mushrooms” with Christopher Hobbs, or “Herbal Treasures of Morocco” with Chris Kilham? “All of them” would have been my preferred answer! Having settled my gear into the sweet little dorm room that was my home base for the weekend, I set about taking all the classes I could.
One highlight was the panel on Good Manufacturing Practices and other FDA regulations around manufacturing herbal products. Mary Blue of Farmacy Herbs was the excellent moderator while Jovial King and Guido Mase of Urban Moonshine, Deb Soule and another herbalist from Avena Botanicals, and Cris Amarillas and Zoë Gardner of Traditional Medicinals discussed their experiences with the FDA. All involved were generous in their discussions, and were doing their best to help and not dissuade herbal entrepreneurs. Still, I was struck by how onerous the FDA’s requirements are for small- and medium-sized businesses and how nonsensical some of those requirements are.
This is one of multiple legal/regulatory issues in herbalism, since herbal supplements have become big business and are attracting more regulations. One of the first things I did at the IHS was to enter into the raffle being held as a fundraiser for the Fire Cider Three, a trio of herbalists bravely facing up to a company that has trademarked the generic term “fire cider.” Saturday evening at the IHS, Diane Miller of the National Health Freedom Coalition spoke persuasively on the importance of health freedom. Among other things, she talked about one of her first cases as an attorney, when she defended a farmer who had been accused of practicing medicine without a license. (There’s more about that in this interview with Diane, and here’s the website for the NHFC.)
One of my takeaways from this conference was that there are, as I see it, three or four main legal issues facing the herbal community. (Disclaimer: The following is my understanding of the issues. I’m no legal expert, and you should talk to one – and do your own research – if you’re directly affected by any of these.)
- FDA Regulations
Good Manufacturing Practices
It goes without saying that quality control is essential, but the testing requirements on many herbal products are a heavy burden on small and medium-sized herbal companies. The cost of these tests encourages large batches and mass production (and, it arguably follows, mediocrity). It sounds like the FDA is essentially assuming everyone is guilty (of neglect or deceit) until tests prove the product is actually what they say it is – even if common sense could have proven that without expensive lab tests. While lots of companies in this country care more about the bottom line than about quality and even safety, it’s shameful and counterproductive to hobble those manufacturers who are genuinely trying to make the best product possible.
All herbal product companies – no matter how tiny – are subject to these requirements. Compare this to food production companies which, in the state of Vermont, don’t need to get a health & safety inspection if they’re bringing in under $10,000 gross per year. Herbal products are regulated comparably to pharmaceuticals, when they’re overwhelmingly closer to food than to drugs, and many herbs are food. While companies do need to be held responsible for the quality of their products, regulations should be clear and reasonable.
Language on the labels, websites, etc. of a company producing herbal products may only describe the way in which a product supports normal health as defined by the FDA – and must not say that the product treats a given condition. Companies are, in many cases, forced to talk around the actual effects of the herbs. For an example, check out Traditional Medicinals’ description of Throat Coat tea. It’s a great description, but nowhere do they say that this tea relieves a sore throat and – in my experience – it does, in a jiffy. I haven’t talked to Traditional Medicinals about this, but I’m betting that the reason they dance around the phrase “relieves a sore throat” is that they’re not allowed to say that. If so, this is a great example of this FDA regulation hindering clear language. For more information on structure/function claims and how insidiously they effect clear communication, I recommend this talk by David Hoffmann.
- Trademarking and Patent Issues
There’s a real danger of large companies trademarking the names of and even patenting the recipes for traditional herbal remedies.
A while back, a company called Shire City Herbals trademarked the name “Fire Cider”. What’s wrong with that? Rosemary Gladstar has been sharing this remedy widely under the name fire cider since the 1970s, and the use of the name prior to Shire City’s trademark is well-documented. Herbalists, therefore, regard “fire cider” as a generic/traditional term. It’s as though someone tried to trademark the term “chicken noodle soup”. You can find out more about the campaign to Free Fire Cider here. Trademarking generic terms limits other producers’ ability to communicate clearly with customers in an industry that is already severely limited in the language that’s allowed on labels.
Recently, the New Yorker reported on the patenting of traditional recipes. While a trademark reserves the use of marketing language, the patent-holder actually “owns” the recipe itself. Accordingly, patents are only meant to be issued for genuinely unique recipes. The fact that patents have been issued for traditional recipes is, frankly, pretty scary, since it costs a lot to fight those patents.
- Not Practicing Medicine without a License
While it’s legal for herbalists to educate clients about the use of herbs, the language a clinical herbalist can use is limited due to restrictions on practicing medicine without a license. Herbalists must strictly avoid diagnosing, treating, or preventing diseases or prescribing remedies. This is, in many ways, just fine: Conventional medicine has brilliant diagnostic tools available. Generally herbalists don’t want to “treat” people so much as they want to empower people to care for themselves. But sometimes this issue comes down to semantics and hinders clarity. There are plenty of herbs that will, essentially, cure (read: give your body the tools it needs to heal from) plenty of conditions, and herbs can treat all kinds of symptoms. We should be able to talk about that without worrying that a slip of the tongue will render us vulnerable to prosecution.
While it’s imperative that each and every health practitioner be completely transparent about his or her training and experience, I think it’s important to question why conventional medicine is given such a privileged position. Self care is a personal responsibility and individuals should be able to consult with whomever we think is best qualified to help us. There are ongoing efforts to give individuals to choose their health practitioners. You can find out more at the NHFC website.
During the last class period of the conference, David Hoffmann taught “Veriditas, the Green Man, and Herb Hugging.” This was a moving but not warm and fuzzy talk that I wish you all could have joined me at, because I don’t feel like I could do it justice with a quick explanation. I’m just going to pull out a couple of quotes here. I should say that these are, obviously, pulled from a larger context.
“I think product issues are the door through which capitalism is trying to take over herbalism.”
“Luckily they’re not burning us any more. They’re just bankrupting us. And in a capitalist culture that’s almost as bad.”
I’d like to just take a moment to emphasize that last one, in light of the above issues:
I am deeply grateful to the folks who are, despite the frustrations and challenges, fighting the good fight to keep high quality herbs accessible. I especially admire herbal companies that provide opportunities for education: You know that people aren’t just in it for profit when they sell bitters – and also teach people to make their own bitters. It’s vitally important to keep teaching people to make their own herbal products, to make herbal products so ubiquitous that it’s as impossible to legislate them into inaccessibility as it is to legislate chicken soup. Herbalists absolutely deserve fair compensation for the time, effort, and energy (as well as expenses) that go into crafting herbal products and making them available for purchase. On the other hand, we mustn’t forget that, if we’re willing to put in our own time, effort, and energy, the plants will gift us with the rest. Herbalism can exist outside of capitalism.
That’s easy to say and nice to think about, but even better to experience: A year or two ago, I came across a post about a bus named Edna Lou. Edna Lou and Guisepi of the Free Tea Party travel around serving free tea to people at festivals, farmers’ markets, city streets, and so on. I was, of course, intrigued – and I was pretty psyched when I saw that the tea bus would be at the IHS. Despite this, my New England reserve reared its head, and I didn’t head straight to the tea bus: My topsy turvy logic was that I didn’t want to bother the folks on the bus by asking for tea. (A more sensical thought might have been that, if people have traveled so far to gift tea, they’re probably excited to share it.) It wasn’t until Saturday night when – after a lovely time over at the Herbalist’s Ball and some excellent conversations – I was wandering back to my dorm room, perfectly satisfied to be heading to bed. And yet, as I walked past the tea bus, I felt myself sort of leaning toward it, pulled in by the lovely thought of folks having tea. “There’s free tea,” one of the people who was wise enough to be already hanging out at the tea bus said, and that was all I needed: I spent the rest of the evening and some time between classes on Sunday sitting on cushions outside the tea bus, enjoying brilliant company and delicious tea courtesy of the wonderful people who had brought Edna Lou to the IHS. Afterwards, I wished I had another week at the IHS – not necessarily to take more classes, because my brain was already bursting – but to drink tea at the tea bus, sitting on cushions and discussing classes and unpacking them with other attendees. You can bet that – whenever, wherever – I next spot Edna Lou, I’ll make a beeline for that tea bus, because that little space of free tea and awesome people was a huge part of what I loved about attending the IHS.
Heading home both smarter and wiser, I made three trips to the car with my luggage: One with the troublesome suitcase, one with most everything else, and one with my arms full of seedlings to plant in my garden.