In shocking arguments before the appeals court, it was revealed that the FDA based its ban the intake of various substances similar to ephedra diet pills, but not on ephedra itself. Nutraceutical attorney Jonathan Emord argued that Judge Campbell was correct in determining that the FDA should have studied the effects of various doses of ephedra and issued specific, dose-based regulations rather than a total ban on ephedra diet pills.

“Unless you have proof it presents risk at a specific dose level, you can’t just willy-nilly ban these things,” Emord said. “This is an irrational scheme.” The attorney argued if the ban is restored, it would essentially give the FDA license to ban any product, even if the harm comes only at exceedingly high doses.

Emord said Nutraceutical, based in Park City, Utah, has not resumed selling low-dose ephedra supplements because there has been no reliable source available since the ban took effect.

The judges did not indicate when they would rule.
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