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CNN Talkback Live

Are Consumers Protected by Lawsuits, FDA Regulations?

Aired June 07, 2001 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
(BEGIN VIDEO CLIP)

RICHARD BOEKEN: I started smoking Marlboro Reds.

(END VIDEO CLIP)

BOBBIE BATTISTA, HOST: Richard Boeken was 13 when he began his two-pack-a-day habit. Now, riddled with lung cancer, he's won a $3 billion lawsuit against Philip Morris.

(BEGIN VIDEO CLIP)

MICHAEL PIUZE, BOEKEN ATTORNEY: They're liars. They've lied for 50 years.

BILL OHLMEYER, ATTORNEY, PHILIP MORRIS: But it strains credibility to suggest that he wasn't aware of the risks of smoking and somehow was misled about those risks.

ANN ANDERSON, JUROR: That came under free choice. But when you're addicted, you basically have no choice.

(END VIDEO CLIP)

BATTISTA: Who's responsible for the choices you make? Look at the shelves lined with herbal-enhanced food and drinks. The FDA warns they might be illegal if the additives aren't considered safe.

(BEGIN VIDEO CLIP)

VARRO TYLER, HERBAL EXPERT: Indiscriminate use must be avoided if benefit, not harm, is to be obtained from them.

(END VIDEO CLIP)

BATTISTA: Do you trust what manufacturers tell you about herbal food additives? If the government issued a warning, would you listen?

Good afternoon, everyone. Welcome to TALKBACK LIVE. Tobacco stocks are taking a hit today in response to the $3 billion jury award to a two-pack-a-day smoker. It is considered the largest ever individual award in a tobacco case.

With us today are Jacob Sullum, senior editor of "Reason" magazine. He is author of "For Your Own Good, The Anti-Smoking Crusade and the Tyranny of Public Health." Also with us is Richard Daynard, law professor and chairman of Northeastern University's tobacco products liability project.

Gentlemen, welcome.

JACOB SULLUM, "REASON" MAGAZINE: Thank you.

RICHARD DAYNARD, NORTHEASTERN UNIVERSITY: Thank you.

BATTISTA: Jacob, let me start with you. Were you surprised by this verdict? Did it seem excessive?

SULLUM: Well, yes, it did seem excessive. It's hard to be surprised by any verdict in a tobacco case nowadays given some of the huge verdicts we've seen recently. There was a case in Florida not too long ago, a class action, where the jury awarded $145 billion in damages. So it's kind of hard to be appalled anymore. But, yes, it is surprising.

BATTISTA: I think one of the things that made this case particularly surprising were some of the particulars in it that appeared to make this plaintiff not very sympathetic, I mean, the fact that he was addicted to heroin, he was addicted to alcohol. You know, he said that he did not know of any of the dangers of smoking and tobacco until the congressional hearings in 1994. A lot of that seems to sort of suspend belief.

SULLUM: It seems hard to believe. I mean, when he was growing up in the '50s, the hazards of smoking were already a major topic of public discussion. There were studies that came out in the early '50s that got a lot of publicity linking smoking to lung cancer. By the late '50s, which is around the time he started smoking, the surgeon general was already saying that it looked like cigarette smoking was the major factor in the increased rates of lung cancer.

And, of course, in 1964, you had the first surgeon general's report that definitively stated, yes, smoking does cause lung cancer and it can lead to other fatal illnesses. And from then on, we've had about two dozen surgeon general's reports reiterating those points emphasizing them, adding detail, adding evidence.

We had warning labels starting in 1966, stronger warning labels went on in '69. They started appearing in all the ads as well as all of the cigarette packages in '72. And even by the end of the '60s in the restatement of torts, which is authoritative statement of product liability law, we were told that tobacco is an example of a product, that yes, is dangerous but one whose dangers everybody knew.

BATTISTA: Let me get Richard in on this quickly here. Clearly, I guess some of the particulars of this case didn't matter to the jury, that they perhaps just had a message to send.

DAYNARD: Well, they did have a message to send, but obviously, they also believed, unlike Jacob, he wasn't at the trial, I wasn't at the trial. The jury was at the trial. They took this case very seriously. They deliberated for seven days about it. It's not as if this was some kind of knee-jerk reaction. They obviously went through the evidence that the defense presented and the arguments the defendants made just as they went through with the plaintiff's evidence.

You know, if you look at the fact that he was addicted to heroin and to alcohol, apparently he was. But he was able to break those addictions. He has the same experience as an awful lot of people who are sort of recovered alcoholics who say quitting alcohol was hard, but quitting smoking is even harder. In the case of heroin...

BATTISTA: Well, he clearly -- it would seem to me that this man clearly had an addictive personality. When does he become responsible for getting help for an addictive personality in trying to break all of these habits?

DAYNARD: Well, I think he probably did get help. But a lot of people are unable to quit smoking even with the assistance of help. A lot of people obviously can quit smoking. But let's think about, you know, his responsibility and what he's paying for it. He's never going to see any of this money. He's going to be dead before any of this money gets paid. Philip Morris is going to see that the money doesn't get paid until they've gone through every appeal as, of course, they're entitled to do. He's not going to see the money. So he just bears the cost, which is an early and very unpleasant death.

Philip Morris meanwhile, every time one of those studies came out that Jacob talked about, Philip Morris had an answer to this. Philip Morris had a press conference along with the rest of the tobacco industry saying, "This is all just statistics, it's not real. We have equally reputable scientists who say the exact opposite. This is politically correct science. You shouldn't rely on it," and so forth and so on.

So Philip Morris has been -- you know, never suffered lung cancer, never -- obviously doesn't suffer anything, including losses. They have huge profits. They were, until yesterday, the darling of Wall Street once again because they make such high profits.

BATTISTA: Well, I guess we do have to remember they do manufacture a legal product. And until we change that...

DAYNARD: Yes, a legal -- right, swell. They manufacture legal products, sure. But nobody's saying the problem is they're manufacturing the problem -- the product. The problem is what they've said about the product for the last 50 years. They knew back in the early 1960s, actually the late 1950s, that their product caused lung cancer, just the disease that got Mr. Boeken. They new from the early '60s it was extremely addictive. They lied about it. They...

BATTISTA: And the public knew by the '60s or '70s.

DAYNARD: They what?

BATTISTA: The public knew by the '60s or '70s. It's just that tobacco companies wouldn't admit that they knew that. DAYNARD: I think this is an important point.

SULLUM: The public new. There is a difference between what the tobacco companies said and what people actually believed or knew. That's the critical thing in this case.

DAYNARD: Why did they say it then?

SULLUM: I'm not saying that, you know, what the tobacco company said was truthful. What I'm saying is despite what they said, this was a matter of common knowledge certainly by the time of the first surgeon general's report. And the fact Mr. Boeken repeatedly tried to quit smoking shows that he knew it was dangerous. Why else would he try to quit if he didn't know it was dangerous? That doesn't really make any sense to me.

BATTISTA: Let me -- let me bring Roger Cossack into this conversation quickly here just to tell us about some of the legal particulars of this case. He is our CNN legal analyst, as you know, and co-host of "BURDEN OF PROOF."

Roger, how and why do you think the jury came to this particular verdict?

ROGER COSSACK, CNN LEGAL ANALYST: Well, you know, it's hard to say why a jury came to a particular verdict or why they awarded such a huge amount of money. I will make a prediction that -- although I haven't been doing so well in my predictions lately, but I'll still my neck out again and tell you that I don't think this award will stand. I think $3 billion is an excessive award, and I think the courts -- either this judge or an appellate court will cut it down.

One of the things the law does not emphasize, or certainly does not encourage, rather, is windfalls. And certainly, this would be a windfall. Now why they decided to...

DAYNARD: Well, any punitive...

COSSACK: Now why they decided -- well, some view it as more of windfalls than other.

DAYNARD: Any punitive damage is...

(CROSSTALK)

COSSACK: But this is certainly...

DAYNARD: Well, any -- I mean, that's the point of a punitive damage, is to punish.

COSSACK: No, that isn't. The point of a punitive is not that a defendant get a windfall. The point of a punitive is to punish somebody for doing something. Now certainly...

DAYNARD: Right. COSSACK: Now certainly, the jury may decide in this case that, in fact, the tobacco should be punished. And there's a lot of reasons to punish tobacco. I mean, one of the problems that tobacco has is it's not just that it causes lung cancer. It's that for a number of years, they lied about something that they knew very well, which was that nicotine was a very -- it was and is a very addictive substance.

And they just lied about that. Not only did they lie about that, but they actually went out and juiced the amount of nicotine in cigarettes so that all the time the people were smoking filtered cigarettes, the kind that supposedly reduced the amount of nicotine, what they did was add more nicotine to some of those cigarettes so they got the same amount. And that was things that the tobacco companies did that they just sat on and lied about.

And I am sure that some of that evidence -- and I don't know, but if that evidence got before a jury and got part of the right jury, that jury could get very, very angry about that and reach out and want to punish. And in this case, they punished for the amount of $3 billion. But I mean, I just think that it's an excessive amount.

DAYNARD: Well, let me ask you, what's the right amount? You have an industry that kills 400,000 of its customers each year, that hooks 1 million new customers, mostly kids and teenagers, on its addictive and deadly products, that's been lying through its teeth for 40-50 years. What's the right amount of punishment? If 3 billion is the wrong number, what's the right number?

SULLUM: I think the right number is zero.

COSSACK: I would suggest that whatever the number is, it does not deserve to go to an individual who I believe is not totally -- does not totally walk in, unfortunately -- with clean hands either.

Look, a point has been made here that I think is something that we have to consider. Yes, the tobacco companies, in my mind, acted very wrongly. They -- I told you what they did with the nicotine. But on the other hand, you know, who didn't know that tobacco wasn't good for you in the last 35 years? I don't know anyone who doesn't. There has to be some tradeoff.

The fact that this one man should receive $3 billion from Philip Morris is a windfall.

DAYNARD: Well, he's dying.

COSSACK: Now perhaps Philip Morris should take $3 billion and have to distribute it to a whole lot of people who suffer from smoking diseases or smoking illnesses, which is what I think that the national settlement calls for. You know, that maybe is a better idea. But the fact that this man, who willingly and knowingly smoked -- and I feel terrible for him; I understand that he has six months to live -- should suddenly wake up with $3 billion. I just think doesn't make much sense.

BATTISTA: Let me go to the audience... DAYNARD: Well, he doesn't have the $3 billion and he never will.

BATTISTA: Let me get the audience in on this quickly before we have to take a break here.

Clifton, your comment?

CLIFTON: Yes, I think the verdict may be a little excessive, but I believe that there should be a verdict against them in some amount, because as the gentleman pointed out, most people who start smoking, as I did start when they're teenagers, when they're very vulnerable. And we have laws protecting children against lots of other defective products and circumstances that are detrimental to children. And it's highly addictive. The surgeon general has pointed out that nicotine is as addictive as heroin. So I think that's probably what the jury was thinking about.

BATTISTA: All right, and quickly over here to Jill (ph), who disagrees.

JILL: But if you're going to make the tobacco companies responsible, what about his responsibility? He had an addictive personality. He knew that from the start. So where does it end with the lawsuits? Where will it end with the lawsuits? So nonsmokers who get the effect of smoking, will we be able to sue and get money from that also? I mean, where will it end?

BATTISTA: We've got to take a quick break here.

Roger, thanks very much for joining us. Appreciate your time once again.

And a little bit later on in this show, we will talk about all of those herbal-laced foods showing up on grocery shelves. How do you know what you're getting when you buy a drink enhanced with ginkgo biloba? The FDA may take some action.

Up next, should you blame someone else for your addiction? We'll be back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

BOEKEN: I started -- oh, excuse me. I started smoking Marlboro Reds. When I had stopped, I was smoking Marlboro Ultra Lights.

(END VIDEO CLIP)

ANNOUNCER: So far, only one company has actually paid a plaintiff in a tobacco lawsuit. Brown & Williamson Tobacco Corporation paid a 70-year-old ex-smoker $1.1 million in 1995.

BATTISTA: I've gotten a bunch of e-mails here in the last 15 minutes. And you know, we always try to be very fair on this show, but I have to tell you there's not -- so far I have no sympathy at all yet for the plaintiff in this case. Just an example, Amanda in Illinois says, "This man should have sued doctors for failing to diagnose blindness, deafness and inability to retain information that has been in the public domain for a very long time.

David in Florida says, "My mom and I think smokers should be responsible for their own smoking."

Lee (ph) on the phone from Nevada. Go ahead, Lee.

CALLER: Yeah, hi, Bobbie. Thanks. You know, I believe it's a problem with society. We just -- first off, we refuse to have personal responsibility. Obviously, you have a jury there who says, "You know what? No matter what, it's not his fault." I mean, what's next? Are we going to sue McDonald's and Pizza Hut because people get fat and have heart attacks?

BATTISTA: You know, that -- Lee, that's -- I want to follow up on that, because we were talking about that with the audience before. And I'll bring Richard and Jacob in on this. But a report is out today that says the risks of obesity are worse for your health than smoking. So is that where we are going next if you choose to eat at McDonald's? You know, they know the food is not good for you. You know the food is not good for you. And you're still going to eat that kind of food and put yourself at that sort of risk? How is it different?

DAYNARD: Is that to me?

SULLUM: I'm not sure it is different. I think, actually, I wanted to put the risk or the strength of the nicotine addiction in some perspective. It's true that a lot of people have a very hard time quitting smoking. But at the same time, people quit smoking all the time, all over the place. There are about as many former smokers in this country as there are smokers. Typically, they quit without any kind of formal treatment, typically cold turkey.

A gentleman earlier said that the surgeon general has asserted that nicotine is as addictive as heroin. And of course, the plaintiff in this case quit heroin. So I'm not sure what that means. There's a difference between something that's hard to do and something that's impossible to do. If you break it down and just think about this in very straightforward terms, the act of buying a pack of cigarettes, opening it up, pulling out a cigarette, putting it in your mouth, lighting it up, inhaling the smoke, these are all volunteer actions. None of these actions are compelled.

And, you know, I suspect that Mr. Daynard will say, you know, nicotine is different from overeating because you're dealing with an addictive drug. But I would argue that people, in fact, have a great deal of difficulty losing weight. They lose weight, they regain it. People have a tremendous amount of trouble keeping weight off, and I'm not sure that that is fundamentally different from the difficulty people have in quitting smoking.

BATTISTA: Richard. DAYNARD: Well, I appreciate your giving my argument, so let me give a different one, which has nothing to do with the smoker. And by the way -- I mean, everyone says people should be responsible. Mr. Boeken is bearing the responsibility for his smoking. He's dying. How old is he? Early 50s? He's dying of a very painful disease. He will never see a penny of the money that's awarded.

So the question is: What about Philip Morris? I don't know that McDonald's has done anything in any way comparable -- and I strongly doubt they have -- to what Philip Morris and the other tobacco companies did, which is at a time when there was great public uncertainty about it, you know beginning in the 1950s, Philip Morris and the other tobacco companies continued to assert that this was a great controversy, that the evidence that smoking caused disease was just partial until very, very recently, perhaps until this case.

They used to talk about the alleged dangers of smoking. How nobody ever died from an alleged danger. You only die from a real danger. They've never -- you know, until very, very recently, until they were, you know, readjusting, fiddling with their trial strategy in a desperate effort to figure out a way to spin their way out of responsibility here, not only have they never admitted the dangers, they have always run a disinformation campaign that -- and they did it for a reason. They spent millions and millions of dollars running a disinformation campaign to try to confuse people because they knew that, one, kids are easily confused.

Your parents tell you not to do a whole bunch of things. If there's somebody else saying, "Don't worry about it, kid. Be a man," or "Be a sexy woman and, you know, do this very adult thing." That's what they did with the kids and...

BATTISTA: Well, you know what the sad thing is? The sad thing is that kids today know that smoking is bad. They know from the day they're born that smoking is bad for you and they're still choosing to smoke at an alarming rate with or without promotion.

SULLUM: Mr. Daynard is right that...

BATTISTA: Let me go...

SULLUM: Sorry.

BATTISTA: I want to go to Jackie (ph) quickly in the audience here, because we found out before the show started that Jackie's husband worked for a long time for Philip Morris, but he also died of emphysema, correct?

JACKIE: Well, he worked for Philip Morris for 13 years, from the time he was about 19 until he was about 32. He had emphysema. He was diagnosed with emphysema about 15 years ago. He died January 13 of this year. But he always felt, and not because he worked for Philip Morris, but he always felt that nobody held a gun to his head telling him to smoke.

He enjoyed smoking and he always felt that it was his personal choice and that these mega-lawsuits just shouldn't happen. There should be more product testing, more awareness, but that these $3 billion lawsuits, you know, they're not going to really benefit the person that's...

BATTISTA: You know, from what I understand, the tobacco companies do have the technology for a safer cigarette, or at least one that considerably cuts down on the risk of cardiovascular or the risk of cancer.

DAYNARD: And they've had the technology for 30 years.

BATTISTA: Yeah, why are they not -- why are we not -- why wouldn't you go after the tobacco companies for that, for not...

SULLUM: They have done that. They have gone after them for that. But the problems is, from the tobacco company's perspective, is that if they thought going back a few decades, if they introduced a product that they advertise as safer, then that will be conceding the thing that they were trying not to concede, which is that their normal products are hazardous.

DAYNARD: Yeah, that they wanted to lie about it, right.

SULLUM: But so they -- I'm not defending them. I'm trying to explain how they arrived at this decision. They're trying to protect themselves from liability all along.

Now, of course, there are some companies that now are looking into this. In fact, R.J. Reynolds has introduced a product they're test marketing that seems to reduce a lot of the toxins in tobacco, and there are various other approaches. Whether they're going to actually gain favor in the marketplace is unclear at this point. But one interesting thing to keep in mind is that it seems to me the anti- smoking activists are really conflicted about this, because on the one hand, of course, they want to reduce, you know, death and disease, and they'd like to see a safer cigarette. But on the other hand, I've heard the argument that if you introduce a safer cigarette, people will be more inclined to keep smoking or to start smoking that ultimately will be worse off. So they're not sure they want a safer cigarette.

BATTISTA: I have to take a break, but I'll let Richard answer that as soon as come back.

(COMMERCIAL BREAK)

ANNOUNCER: The second-largest award in an individual tobacco case is $80.3 million in punitive and compensatory damages awarded by an Oregon jury in 1999 for the family of Jesse Williams.

BATTISTA: OK, let me -- Jason (ph), I'm sorry we interrupted you there to come back to the show. You think the tobacco companies should be held accountable?

JASON: Yeah. I made the point before, the million-dollar word here is accountability. Who's accountable? The individuals; of course they are. Everybody is accountable for their own actions.

But these big tobacco companies are making billions of dollar off of individuals, so they should be more accountable for the products that they put out to people. And when I say accountability, they make billions. Why not take some of that money and put it back to R&D?

The only way we can make them do that is through these lawsuits; otherwise, there's no reaction at all. And believe me, there's been efforts made, I'm sure. The only way you're going to get big tobacco to react is to bring them to court and sue them for billions of dollars. And that's what they're doing. That's what these lawsuits are for.

BATTISTA: Richard, I'm sorry. Before the break, we were talking about the tobacco company's ability to make a safer cigarette, which is sort of catch-22 there. You know, if you do make a safer cigarette, more people will smoke and -- I don't know -- could be a whole other issue all over again but...

DAYNARD: Well, the interesting thing is that the tobacco companies have always pretended, at least since 1954, they pretended to make a safer cigarette. In fact, what happened in around 1954 was Marlboro, which had been a woman's cigarette and a filtered cigarette with very little sales, picked up this what became the cowboy campaign and became a man's cigarette as well as woman's cigarette, selling the filter as a safer way.

You can be a man, smoke a real manly cigarette and yet use a filter to protect your health. So the cigarette companies have been selling their cigarettes since the mid-'50s, since the evidence began to come out as the answer. You know, "Yeah, there's problems with cigarettes but it's with the other cigarettes. You smoke the cigarette with the filter," or "You smoke a low-tar cigarette, so you're going to be OK." And that's exactly what the smokers believe.

I think that's what Mr. Boeken believed. I think he moved through the whole range of the Marlboro cigarettes. And the last cigarettes he smoked were the ultra light cigarettes. But it turns out they all delivered the same amount of tar and nicotine, because what happens is you just have to puff a little harder on it, or they put invisible holes in the filter so it looks to the machine as if it's a very low tar cigarette.

But, in fact, as you smoke it, you cover the holes unconsciously to get the taste you're used to and you end up getting the same tar and nicotine. So they've been playing with us.

What they haven't done is actually produced a cigarette which they had on their shelves, as documents from Philip Morris, internal documents that said in the 1960s, they had genuinely safer cigarettes on the shelf but they didn't think people would like the taste quite as much.

They didn't want to -- as Jacob correctly points out -- they didn't want to run any liability risks, so they didn't want to actually admit that there really was a safer way of doing it. They didn't put the stuff on the market. And when they did put it on the market, they didn't really describe it accurately, didn't say, "The other stuff gives you lung cancer, this stuff doesn't."

And as a result, there have been literally hundreds of thousands, if not millions, of unnecessary deaths just because of this particular misbehavior.

BATTISTA: I only have a few seconds left; final statement from Jacob.

SULLUM: In terms of low-yield cigarettes, one of the big mistakes there was not spiking cigarettes enough. Actually, if you had boosted the nicotine level, people would have inhaled fewer toxins to get the dose of nicotine they were accustomed to. So here's something the tobacco companies are pilloried for, which is spiking cigarettes with nicotine.

Actually, from a health perspective, it would have been good if they did more of that.

BATTISTA: We have to take another break and say good-bye and thank you to Jacob Sullum and Richard Daynard. Thanks for joining us.

Couple more e-mails. Do I have time, or no?

Jack in Texas says, "I quit a four-pack-a-day habit because I wanted to live to see my grandkids become adults, and to enjoy my great grandchildren."

All right, when we come back, we'll go from one product that carries a government warning to a host of products that the government doesn't regulate, but could be in your favorite food or drinks. Herbal enhancements: Could they be hazardous to your health? We'll be right back.

(COMMERCIAL BREAK)

BATTISTA: Welcome back.

The Food and Drug Administration says some foods containing herbal extracts could be illegal, and warnings have been sent out to companies whose products are laced with such common herbs as a ginkgo biloba, Siberian ginseng, and echinacea. I can never say that right.

Joining us is CNN medical correspondent Rea Blakey.

Rea, why is the FDA getting involved in this now all of a sudden?

REA BLAKEY, CNN MEDICAL CORRESPONDENT: Well, Bobbie, it's an interesting sense of timing here. In January, the FDA sent out letters to members of the industry to food manufacturers to say, listen, we are looking at what you put into food products, because there's an issue here that we're concerned about.

Essentially, the issue has to do with herbal supplements, like echinacea or ginseng. Basically what they're doing is they are saying, we don't regulate these things as products themselves, but we do regulate the ingredients in foods. Therefore, the FDA is taking this particular stand in saying, these particular ingredients may or may not be safe -- we don't know. It's up to the manufacturer to prove that.

Let me give you a list of some of the products that are included. There were three manufacturers who were cited for four different products, the first of which is a product called: Fresh Samantha Super Juice With Echinacea. The second product is Hansen's Healthy Start Immune Juice. And then there's also, from the company US Mills, two products. These are cereals; the first is called New Morning Organic Ginkgos and the second is called New Morning Organic Ginseng Crunch.

Again, the FDA does not regulate the specific supplements that are in these products that are of some concern to the FDA. However, what does basically appear to be the issue here is the law that's at stake. Two basic premises: either an ingredient has to be FDA approved or it has to be GRAS, which basically is an acronym for Generally Recognized As Safe. Again, the FDA does not regulate these supplements, so they're looking for the food manufacturers to prove that in fact these herbal supplements are generally recognized as safe.

BATTISTA: So this doesn't seem to help the consumer much, if I read this right. In other words, they're warning them, do something about this; either find out whether it's safe or not, but they're not saying take it out or anything like that. So the consumer, again, is sort of left to make the choice as to whether or not to buy the product, right? And take the risk?

BLAKEY: Basically Bobbie, it's a little bit of inside baseball, but it could shift the paradigm eventually. The issue being that the manufacturers that received these letters have 15 days to either change their labeling or show -- and/or that there is scientific proof that these ingredients are safe. That will give the FDA I think an opportunity to say, look, we don't regulate this, but you have to do the scientific research that shows it's in fact safe for the general consumption of the public, and that I think is what is really going to move this issue forward.

BATTISTA: All right, Rea, thank you so much for joining us today. Appreciate it.

With us now is Dr. Isadore Rosenfeld, a cardiologist and professor of medicine at New York hospital's Cornell Medical Center. His books include "Doctor, What Should I Eat?" and "Dr. Rosenfeld's Guide to Alternative Medicine."

Also with us Lisa Katic, a registered dietitian and director of science and nutrition at Grocery Manufacturers of America.

Dr. Rosenfeld, let me start with you: why hasn't the FDA been involved in regulating these herbs and additives before this? And, do they need to be? Are they dangerous for us?

DR. ISADORE ROSENFELD, CARDIOLOGIST: That's a political question. I think, the legislation that has been passed by Congress is generally considered to be the result of pressure from the food manufacturers to exempt these herbs and products from the same strict review that the FDA applies to medication.

The question as to whether to add these medications to other food products is an entirely different question in my view.

BATTISTA: Well, Lisa, how much do the food manufacturers who are putting these additives in their products, how much do they know about their safety?

LISA KATIC, GROCERY MANUFACTURERS OF AMERICA: We are talking about ingredients that have been in the food supply in many different forms for a long, long time. These ingredients have been used in teas, they started out in their traditional use has been in beverages. So, we are not talking about anything here that's deemed unsafe.

No manufacturer wants any ingredient in a food that is unsafe.

ROSENFELD: These ingredients are not in the foods that I eat to the best of my knowledge. The tea that I drink does not contain St. John's Wort or ginkgo biloba or ginseng or any of the other stuff that they put in these foods. Now, you may be drinking these teas and you look well, so they are obviously agreeing with you.

But I don't want them in my tea. If I want those products, I will go to a health food store and ask for them. I don't want anybody to put them if my food without my knowledge and without my approval.

KATIC: First of all, you have knowledge that they are in your food or not because manufacturers are required to declare all ingredients on the food label.

Second, I think we were talking about an opinion of whether they should be used or not versus whether these ingredients are safe. And I'm here to tell you that and confirm with consumers that these ingredient are safe.

BATTISTA: So are you saying this is based on research done by the manufacturers, and is it extensive research? Like, how these additives mix with other medications that people are taking or pregnancy? Is that what you are saying?

KATIC: There is scientific data in monographs, publicly available documents that the food industry uses to make a determination whether to put an ingredient in their food or not. Some companies go as far to consult with FDA if they are going to put an ingredient in a food that has not been there prior. But that's the choice of each individual company or manufacturer.

BATTISTA: I read in my research, Dr. Rosenfeld, that the FDA previously really had not been that involved in this because they have not really received any reports from people that they have been harmed by these additives.

ROSENFELD: Look, in every herb and in every medication that is potent, that has any effect -- we are assuming these ingredients are being put in there because they have some effect. If an ingredient, I don't care whether it's a prescription drug or an herbal medicine, is safe, you have to know whether it interacts with other medications. Even something as innocuous as garlic, in large amounts, or ginger can interfere with blood clotting in somebody that happens to be taking an anti-coagulant.

Now, not all people know that and when they -- if they are told that they shouldn't take the garlic because of that reason that's one thing. But a lot of them don't know that it's in the tea, or whatever else they're drinking. My point is this: Look, I'm a conventional physician, but I have an open mind about these herbs. Some of them are very good.

The only point I'm making is that if you want an herb, discuss with it your doctor. Make sure it doesn't interact adversely with any medication or with any other herb, and then go to a health food store and buy it. I can't see the logic of somebody else adding it. You don't know how much is being put in. The average patient doesn't know what the meaning of a certain dose added to tea or Coca-Cola or Pepsi or whatever they're adding it to.

So I think, in the interest of safety, if you are interested in taking ginseng to potentate your sex life or for whatever reason you're taking it, go to a health food store and buy it separately.

BATTISTA: I have to take a break, and our question by the way for the online poll today: should the FDA regulate herbal supplements?

Take the TALKBACK LIVE online vote there at cnn.com/TALKBACK, AOL keyword CNN. While you're there, check out my daily note and drop us an e-mail. We will be right back.

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BATTISTA: E-mails on this subject now, Alesandra (ph) in New Mexico says, "Echinacea and ginkgo biloba are ancient herbal remedies used for centuries before the FDA existed to approve ingredients like saccharin."

R.J. in West Virginia says, "The FDA should regulate these products and companies and companies must be held responsible for any false claims made on product labels." I want to come back to that point a minute but let me take Molly on the phone in Virginia -- Molly (ph).

MOLLY: Hello, I wanted to say that first of all, I'm an individual with the disease lupus, and what the disease is I have an immune system that is overly active. My immune system will cause a lot of problems in my body, and I get very sick and I have a lot of problems.

I have kidney problems, I have back problems, I have arthritis. I'm a very sick individual and I went shopping in the grocery store I picked up a frozen sorbet that had some echinacea in it. I wasn't familiar with echinacea and I didn't even -- it was a small label. I didn't even catch it. So I bought it and I brought it home and I started to eat some of it. And I looked at this, I saw that it said, boosts your immune system, and I thought, this is not what I need. So...

BATTISTA: Did you get sick from it, or...

MOLLY: I did. Well, what happens with lupus is I go into a flare. My body gets overly active and I got sick and I talked to my doctor and she said this is not what you need. I have to be extra careful when reading the labels. It really makes me mad that they do not label these more carefully, they do regulate it.

BATTISTA: Molly, thank you. Lisa, you know, it sounds like obviously the episode that she had wasn't horrible; but that could happen to somebody, and then who is accountable?

KATIC: Well I will repeat what I said earlier, is that these ingredients are required to be declared. Manufacturers do declare when they use any of these herbal ingredients on the food label. It's unfortunate that she found out after the fact but, again, the ingredient was declared on the label. Manufacturers try to do everything they can to inform consumers about what is in a product.

BATTISTA: But they wouldn't have necessarily listed on that sorbet, "if you have lupus you shouldn't take this," or -- shouldn't that sort of information be on there too, just like with other drugs?

KATIC: I think that's an individual case. Labels have to be reserved for information that is material to consumers, to all consumers, not one individual class of consumer. I think we also need to look at what the data is on an ingredient like echinacea specific to lupus and I can't tell you that I know of any evidence that is harmful.

It wouldn't be in a food if it was unsafe and again manufacturers look to existing scientific evidence on an ingredient before they put in a food.

BATTISTA: On the other point that someone brought up in the e- mail there, I think we are guessing that in a lot of these products there is such a minute amount of, say, ginseng in a drink product that you might have to drink hundreds of them to get the effect of it.

If that's the case, if they are advertising the positive benefits of ginseng and it really would take considerably more to get those benefits, are some of these products guilty -- are manufacturers guilty of false advertising?

KATIC: Well, we absolutely support the fact that a claim that's made on a product must be consistent with the level of science that there is to show that that product will do what it is claiming to do. And yes, manufacturers must be held accountable for making false claims on a label.

It's up to FDA to regulate the label, it's also up to FTC, the Federal Trade Commission, to regulate any statements that are made in advertising. So, we absolutely think that if a consumer sees a claim on a label that they want to ask a manufacturer about, they are encouraged to call the 800 number that is always provided on a food label to find out about the ingredient.

BATTISTA: Let me go to the audience quickly here. Is it Jill (ph)?

JILL: My comment was about the FDA. It wouldn't make a difference if they regulate supplements, because they have regulated food and other things for a long time, and they will put something out there and say it's OK, and then they will issue a warning saying it's not OK, so it's back and forth with that.

So, it wouldn't make a difference to me if they regulate supplements to their repertoire, because they don't have a good -- they are not 100 percent accurate right now. They don't have a good track record right now.

BATTISTA: All right, so what you're saying is you don't trust them, they don't have a good track record now?

JILL: No.

BATTISTA: Rose (ph).

ROSE: I think it's important that the FDA regulates the herbal supplements, because of the fact that sometimes people are taking prescription medications and they have a bad reaction to these medications because of the herbal supplements. In one case, there was someone taking the St. John's Wort, and they got a reaction as if they were taking barbiturates because they have blood pressure medication. So, I think that there should be some regulations to these supplements.

BATTISTA: All right. I have to take a quick break here, and we will continue in just a moment.

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BATTISTA: Checking the online viewer vote quickly there. The question today was: should these herbal additives be regulated, 59 percent of the people are saying yes.

We don't have much time left. Final word here goes to Dr. Rosenfeld.

ROSENFELD: Well, you know, the last caller tells it all. There is a woman with lupus who should not be taking echinacea. She is not a doctor. She doesn't know that. She went to buy some sorbet, she took the echinacea and got very, very sick. That echinacea should not be in her sorbet. It should be on the health food self, and she should check with her doctor if she needs it -- I mean, whether it's safe for her to take it.

BATTISTA: I'm sorry, doctor, I am running out of time, but thank you so much for joining us today. We appreciate it. And Lisa Katic, thank you for joining us.

Tomorrow, some of your favorite TV judges will join us for "Free- For-All Friday." Court starts at 3:00 p.m. Eastern. We'll see you then.

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