by Tony Isaacs
For the past five years, the Utopia Silver Supplement Company has been waging a battle for health freedom against the giants of the State of Texas and the FDA -- one which may have major implications for all of us regarding the freedom of access to natural health supplements.
"This system operates on fear, you have no fear and that's a problem for us." - Texas district court official to Utopia Silver Company owner Ben Taylor.
Much like the Alamo defenders in days gone by, this small Texas company and its supporters of health freedom are pitted against a corrupt giant determined to impose its will and stifle freedom -- and just like the Alamo and the struggles that followed, the outcome may effect the freedom and future of millions.
The conflict began as a result of an FDA complaint five years ago that seeks to set a precedent for how much control the FDA has over all natural supplement companies and specifically the manufacture and sale of colloidal silver supplements.
While the Texas Attorney General's office may try to contend that this is merely a state action "to insure the safety of the citizens of the State of Texas", the truth is that the prosecuting Texas assistant attorney general and TDSHS officials are commissioned as officers of the FDA and there is no denying that the investigation into Utopia Silver began as a result of an FDA complaint. The certificates of Commission were obtained after several filings of Texas Public Information Act requests. Therefore, this is really a Federal action by proxy and it has pitted Utopia Silver Supplements against the Goliath of the FDA and the World Pharma lords the FDA serves.
The persecution of Utopia Silver began five years or so ago, about the same time that the FDA began renewed targeting of colloidal silver because of its effectiveness as a natural anti-biotic and rising popularity -- and, coincidentally, as a threat to the profits of Big Pharma and mainstream medicine -- the FDA sent an email to the Texas Department of State Health Services (TDSHS) essentially complaining that Utopia Silver was making medical claims which, in the eyes of the FDA turned their supplements into drugs. The TDSHS then brought the 'complaint' to the Office of the Texas Attorney General (TAG).
It has since been determined that among the targeted objections are: having 'disease' terms such as cancer, hepatitis, diabetes, etc., posted anywhere on the website; having any 'disease' terms in a search engine, and the posting of testimonials from customers who had used Utopia Silver products and defeated or improved any 'disease' condition.
Such restrictions appear to be a clear violation of the First Amendment (Freedom of Speech) of the Constitution of the United States of America, especially the supposed prohibition against posting testimonials and speaking the truth about how people believe that dietary supplements have helped them. If the FDA is to have their way, they will stifle a supplement company's constitutionally protected freedom of speech to the extent that a person seeking a natural dietary supplement for any medical condition would not be able to go to any website which offered vitamins, minerals, natural supplements or any other alternatives to mainstream medicine and be able to find that term in a search of the site or mentioned anywhere in the site. Neither would they be able to find testimonials/customer opinion from anyone who had used an alternative to FDA approved drugs and medical procedures.
It is no secret that the FDA has targeted colloidal silver, which is a safe, effective, natural and inexpensive pathogen destroyer -- four common traits of dietary supplements that represent competition to the approved drugs of Big Pharma and which frequently come under FDA attack. It is worth noting that the FDA at one time had approved 34 different prescribed and OTC (over-the-counter) medications containing silver, but withdrew approval at about the same time antibiotics came on the market and superior methods of making colloidal silver commercially and at home were devised.
The Texas state district court hearings and threatened trial are purportedly about licensing and inspections, but the FDA complaint was centered around the publication of customer testimonials which the FDA considers to be health claims that supposedly enable them to label Colloidal Silver and other Utopia Silver dietary supplements as drugs, and that too is part of the legal proceedings.
Although the State of Texas maintains that they are acting alone, Utopia Silver has obtained copies of individual certificates which show that the state health and AG employees are also "Commissioned Officers" of the FDA -- in apparent conflict with the separation of state and federal powers. It is Utopia Silver's contention that the actions to restrict them are unconstitutional restraints on the freedom of commercial speech (as borne out by previous Supreme Court decisions) and further contends that there is no constitutional jurisdiction for the state agencies, who are actually for-profit corporations (and they are listed as such by Dun and Bradstreet) disguised as constitutional entities.
Utopia Silver believes, as do many others including legal scholars, that much of the country's court system and agencies operate outside the Constitution as corporate entities, having no real jurisdiction until defendants unwittingly submit to the jurisdiction by entering into a "contract" with the courts and agencies through such measures as making a 'general' rather than a 'special' appearance before a court, entering a motion, applying for a license, hiring an attorney (who are themselves 'officers of the court'), etc. Such scholars and observers point to the yellow fringed admiralty flags flying in most of our courts as clear symbols that the courts are not constitutional courts but rather administrative corporate courts operating under the "color of law".
In the case against Utopia Silver, Taylor contends that there is no constitutionally mandated requirement for them to submit to what amounts to a commercial contract with the STATE OF TEXAS, a corporation acting under the color of law but not under the state or federal constitutions, and not in accordance with the God-given unalienable rights clearly declared by our forefathers when this country was founded.
So far the Texas Attorney General's Office (TAG), has given no indication of making a fair or reasonable settlement -- although in the Spring of 2005, the Assistant Texas Attorney General in charge of the case, Raul Noriega, first agreed and then reneged on an oral agreement that would have settled the case. When asked why, Noriega's response was that he was told by higher ups to proceed to trial despite the prior agreement to settle.
In the summer of 2006, TDSHS employees paid three separate visits to the Utopia Silver offices and demanded with a bogus warrant to make inspections. The first time, two TDSHS officers paid a visit. One identified himself as an "inspector" and the other as an "investigator". The owner of Utopia Silver, Ben Taylor, asked to see credentials so he could make copies. When they refused he ordered them to leave his premises and they complied.
The next day they returned, accompanied by two Texas State Troopers, and said they had a warrant. When Taylor demanded to see a supporting affidavit, they refused, saying he could go to Austin if he wanted to see it and threatening to arrest Taylor if he did not comply. At that point, Taylor began placing a phone call to the local sheriff, and the TDSHS employees and State Troopers beat a hasty retreat. It was later determined that no properly executed affidavit ever existed.
Two days later the TDSHS employees returned for a third time, just ahead of a Sheriff's Deputy. Taylor told them that since he was expecting the deputy to be there that morning to take statements about their previous visits, he would talk to them after he spoke to the deputy. He told the two TDSHS/FDA 'officers' to wait outside until the deputy took statements from four employees who had witnessed what had transpired the previous days.
"In the middle of the first statement," said Taylor, "the investigator came and asked to speak to the deputy. The deputy followed him to the lobby and I followed right behind. The TDSHS/FDA officer asked if I was going to comply with the warrant for an inspection. I again told him that I would talk to him when I finished with the deputy."
"He then proceeded to say that since I was refusing his inspection," Taylor continued, "would I sign a document stating that I refused inspection, and I said no and they meekly left. After that, we finished giving our statements to the Sheriff's deputy and so far they have not been back."
Since then, they continued to stonewall and refused to answer questions or otherwise attempt to make clarifications requested by Ben Taylor in accordance with the presiding judge's request for both sides to work together to try to work out an agreement. When Utopia Silver asked why they were being singled out for such actions and nothing was happening to similar companies, Assistant Attorney General Noriega said that it had been decided to make Utopia Silver a test case. After he made the statement, he was interrupted by the TDSHS officer, who, according to Taylor "proceeded to hem and haw on that point, obviously not comfortable with that statement having been made by the Assistant Attorney General."
At a subsequent hearing in the Fall of 2007, the judge stated that he was ordering a trial date to be set then and tried to first intimidate and then coerce Ben Taylor to agree to date for the trial. Mr. Taylor refused to agree, since in doing so he would be in effect entering into a contract to agree to the court's jurisdiction. At one point a deputy was summoned with the clear implication that Mr. Taylor might be arrested if he failed to agree.
Taylor, after various other tactics of intimidation by the judge, told the judge that, "The court might have the power to force me into a trial, but I will never agree to any trial date and will attend only "in propria persona" (in one's own proper person) by "special appearance" in order to defend my God-given Rights." (Note: an appearance may be either general or special; the former is a simple unqualified or unrestricted submission to the jurisdiction of the court where the defendant waives defects of service, the latter is for the purpose of objecting to the sufficiency of service or the jurisdiction of the court over a defendant without submitting to such jurisdiction).
Later, Taylor was told by a court official, "This system operates on fear, you have no fear and that's a problem for us."
Instead of setting a trial, a hearing was set before a new judge to determine a date for interrogatories and discovery as well as inspections and sanctions -- all of which are slippery grounds and another step towards a trial. At the subsequent hearing, Taylor again stated his objections to the jurisdiction and a new hearing was ordered to determine jurisdiction. When the new hearing was held and both sides presented their arguments, the judge rendered no immediate verdict and said she would take it under advisement and render a subsequent decision.
As expected, when the judge made her ruling she apparently ignored all evidence against the 'court's jurisdiction' entered by Taylor and co-defendant Adask, however she failed to do so pursuant to the State's own Rules of Civil Procedure, first sending an email of her ruling and then later sending a letter of the ruling when challenged about her emailing a 'court order'. Some observers believe that such an unorthodox method of 'delivering' a purported 'court order' was yet another in a string of ploys intended to trap Taylor, Adask and other defendants into unwittingly submitting to the court's jurisdiction.
Instead of accepting the improper service, Taylor sent his own "Notice of Insufficient Process" to the court along with a demand to the court and the prosecutor to "Cease and Desist" their fraudulent actions against Taylor, Adask and Utopia Silver.
Taylor's notice was sent on November 30th of last year -- and since it was filed, a silence has descended upon the case. As Taylor reports, "We haven't heard anything from the Texas Attorney General or the courts since late November of last year (about 230 days). At that time, the "judge" issued (by email initially) a court order denying my and Al Adask's (Anti-Shyster publisher and Texas State Supreme Court Libertarian Party candidate) special appearance." (As noted previously, a "special appearance" is one in which is made without submitting to the jurisdiction of the court).
As Taylor reports, "This Notice along with co-defendant Al Adask's "Man or other animals filing", see ((http://wordpress.com/tag/man-or-other-a...) , seems to have short-circuited the Plaintiff's intention to set another court hearing date for Motions for court ordered interrogatories and depositions under oath, as well as a restraining order to prevent my selling of colloidal silver (which they say is a drug because of customer testimonials) and silver generators (which they call a medical device).
"Also filed by us into evidence was a number of other things, including, but not limited to, The Organic Laws of The United States of America, The Common Law (specifically The Herbalist Charter), The Food, Drug and Cosmetic Act of 1938, which limits the FDA's jurisdiction/authority to Washington, DC and the territories (supported by the 18th and 21st Amendments) except in the regulating (organizing for efficient flow) of interstate commerce (transportation across State lines -- there is no FDA authority to control the sale and manufacturing of anything that I can find.), the case of Lopez v. United States, Dun & Bradstreet documents showing that the Texas Courts and government 'agencies' are "corporations for profit", the United States Code 28 Sec. 3002 showing that the "United States" is a federal corporation (which is a fictitious rather than an organic entity- our God-given Rights are recognized only by the organic United States of America) and numerous other Supreme cases that establish that God-given Rights cannot be statutorily converted into privileges."
Has Taylor and health freedom triumphed over a system that is corrupt and unconstitutional? Time may tell otherwise, but so far the silence has been deafening. Many who have followed the case feel that the FDA and their state servants bit off much more than they realized when they decided to take on Taylor and Utopia Silver. Instead of finding a small company and a man they could steamroll and bully, they have instead been fought to a standstill by a man who is determined to carry this fight to the very end no matter what the personal cost.
More than one astute observer has pointed out that the powers that be may well be facing some very thorny issues that had not seen the light of day -- such as the FDA commissioning state officers, the constitutional limits on the true powers of the FDA and other such agencies' true constitutional powers, freedom of commercial speech, and the issue of whether God-given unalienable rights set out in the Declaration of Independence and secured by the Constitution trump the entire corporate "color of law" administrative system of courts and agencies which have been used to usurp our freedoms and liberties over the year.
Should the state and their FDA masters continue further actions, Taylor promises that not only will such issues be at the forefront of his case, but also that he and his co-defendants will then "go on the offensive by filing suit against key officials (in their individual capacities) who have conspired to violate our Constitutionally secured Rights. Public servants/government officials lose their "official immunity" if they overstep their authority as granted (and limited) by the Organic Laws of the USA.
Full article including notice sent to the court click here
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