Quackery: The National Council Against Health Fraud Perspective

William T. Jarvis, PhD
November 1999

The essence of "quackery" is intrinsic to the tradition of the marketplace as a setting wherein people may deceive each other, symbolized by the caduceus (i.e., wand of Hermes), a winged staff entwined by two facing serpents. Hermes was the god of the marketplace and the protector of merchants, messengers, thieves, and outlaws. In Homer's Hymn to Hermes, Apollo says26:

This among the Gods shall be your gift . . . To be considered as the Lord of those who swindle, housebreak, sheepsteal, and shoplift. A schemer beyond belief. . .

The two facing serpents on the wand of Hermes depict duplicity. The true symbol of medicine is the single serpent entwined around the staff of Asclepias, the Greek god of medicine. Sir William Butts, physician to Henry VIII, introduced the caduceus as a symbol of the medical profession, mistakenly believing it to be the staff of Asclepias.3

The duck, harmless creature though it be, now symbolizes quackery because it makes a great deal of noise about nothing.31 Fast-talking and persuasiveness have always characterized deceivers. Charlatan, a French word for "faker," was borrowed from the Italian word ciarlare, which means "to babble, patter, or chatter." The term quack is a clipped form of the Dutch word kwaksalver, which refers to one who "quacks" like a duck about his "salves" and remedies.12 Self-advertisement is a key attribute of quackery.17 The most thorough study of the problem of quackery ever done by Congress got to the heart of the matter when it defined a quack as "anyone who promotes medical schemes or remedies known to be false, or which are unproven, for a profit [emphasis added]."25

Use Versus Promotion

It is essential to distinguish between the "use" versus the "promotion" of false and unproven practices. Legitimate practitioners may use false remedies (i.e., placebos), clinical medicine allows for a certain amount of innovation in patient care such as the off-label use of drugs, and experimental medicine tests unproven procedures as part of medical progress. Nevertheless, legitimate providers do not promote false or unproven methods in the marketplace as "alternatives" to approved therapies. To promote is "to contribute to the growth and prosperity of; to present for public acceptance through advertising and publicity."30 It is such promotions that lure patients away from standard medicine and lead to the needless harm associated with quackery.

The US Food and Drug Administration (FDA) refers to quackery as health fraud. Its definition differs from the standard legal definition of fraud, which includes scienter (Latin for "to know"), meaning that the deceiver knows he is lying. The difficulty of prosecuting sincere quacks under the 1906 Pure Food and Drug Act (PFDA) caused Congress to eliminate the need to prove intentional falsification when the law was redrawn as the 1938 Food, Drug, and Cosmetic Act (FDCA), which defines quackery as:

The deceptive promotion, advertisement, distribution or sale of articles, intended for human or animal use, that are represented as being effective to diagnose, prevent, cure, treat, or mitigate disease (or other conditions), or provide a beneficial effect on health, but which have not been scientifically proven safe and effective for such purposes. Such practices may be deliberate, or done without adequate knowledge or understanding of the article [emphasis added]

Changing Terminology Masks Quackery

Changes in terminology used by the American Cancer Society (ACS) reveals that what has been historically shunned as quackery has gained a kind of "political correctness." From its beginning in 1915, the ACS gathered information on quackery by what came to be called the Ad Hoc Committee on Quackery. In 1954, to avoid the liability associated with automatically labeling anyone a quack whose methods were listed, the committee's name was changed to the Committee on New and Unproven Methods of Treatment. In 1970, the term treatment was replaced with management to include dubious methods of diagnosis and prevention. In 1989, the committee's name was changed to the Committee on Questionable Methods of Cancer Management to differentiate between unproven methods that were not seen as promising and experimental methods that were moving through the scientific system. In 1995, because of the creation of the National Institutes of Health Office of Alternative Medicine and changes in ACS organization that designated it to be a subcommittee, the committee's name was again changed to the Subcommittee on Alternative and Complementary Methods of Cancer Management. The analogous committee of the American College of Rheumatology has similarly evolved from the Unproven Remedies Committee, to the Questionable Remedies Committee, to the Complementary and Alternative Remedies Committee. Through all of these name changes, the work of these committees has remained the same—to examine unapproved and unpromising methods of cancer and arthritis management and to warn patients not to use them.

The defining feature of "alternative" medicine is that it "lacks sufficient documentation in the United States for safety and effectiveness against specific diseases and conditions."15 The National Council Against Health Fraud does not object to the testing of unproven methods but opposes their promotion in the marketplace. Dr. Marcia Angell, Executive Editor, New England Journal of Medicine, stated that "the very name 'alternative medicine' is Orwellian 'newspeak,' implying that it is a viable option. It is a new name for snake oil."19 Language can be used to disguise. An expert in the psychology of deception warns of "doublespeak"21:

Doublespeak is language that pretends to communicate but does not, that makes the bad seem good, the repulsive appear attractive or at least tolerable. Doublespeak is the deliberate use of language as a weapon or tool . . .  to achieve their ends at the expense of others.

Size of the Problem and Changed Attitudes

In 1983, following a survey of over 1300 consumer affairs and law enforcement offices, the US Senate Committee on Aging reported that "quackery and medical related frauds" was first among the 10 most harmful frauds directed against the elderly.16 In 1984, a House of Representatives subcommittee independently arrived at the same finding and estimated that the elderly were spending at least $10 billion per year on quackery.24 In 1987, a national survey found that 46 million adults had used one or more questionable health care products and that 38 million had done so during the past year.20 Consumer protection agencies responded by holding three national health fraud conferences (1985, 1988, and 1990) and numerous statewide health fraud conferences to find ways of combating quackery. In 1993, Eisenberg et al.7 reported that 34% of Americans had paid $13.4 billion out-of-pocket for some form of "unconventional" medicine. Although not all of what was included as being unconventional deserves the label of quackery, the change in response to these data was quite different. In the first three instances, the data were seen as indicators of a societal problem, although the latter has been viewed as a marketing opportunity. Clearly, there had been a shift in attitudes about how to view questionable consumer health behavior.

Different Kinds of Quacks

Quacks can be put in three broad categories: charlatans, cranks, and health hucksters. Charlatans are deliberate fakers who exhibit characteristic psychopathic behavior. Hare states that "You find psychopaths in all professions. He's the shyster lawyer, the physician always on the verge of losing his license, the businessman with a string of deals where his partners always lose out."14 Psychopaths are "social predators who charm, manipulate, and ruthlessly plow their way through life, leaving a broad trail of broken hearts, shattered expectations, and empty wallets. Completely lacking in conscience and in feelings for others, they selfishly take what they want and do what they please, violating social norms and expectations without the slightest sense of guilt or regret."14

Cranks sincerely believe in themselves and their nostrums. They are likely to be as honest as anyone and often exhibit selflessness and generosity. Science historian George Sarton had cranks in mind when he observed that "It is not true that all quacks are crooks, and some expert physicians are as greedy as quacks; the difference between them lies not so much in greediness as in a lack of criticism."27

Health hucksters are business people who idealize entrepreneurialism and free enterprise. When they engage in quackery, they are merely exploiting opportunities offered by the public's interest in health. Health hucksters are unconcerned about the scientific validity of their wares.

Regardless of the category into which a quack may fit, the marketplace is the arena in which quackery flourishes. By appreciating the key differences between commercialism, consumerism, and professionalism, well-intended people can avoid engaging in quackery.

Commercialism

Free market ideology is rooted in the principles of Adam Smith and Herbert Spencer. Smith, the "father of modem economics," asserted in 1755 that the wealth of nations would mount with each worker—including the quack—doing what he did best. Nineteenth century sociologist Herbert Spencer taught that government should not suppress quackery. Evolutionary progress meant that the fit should survive and prosper, whereas the unfit should perish. Society, like nature, was red in tooth and claw. Government action protecting those so unfit as to succumb to quackery only impeded society's progress.32 Such ideas are extolled by free market ideologist Milton Friedman, whose book Free To Choose strongly influenced Ronald Reagan, whose endorsement adorns it. Friedman defended the quack cancer remedy laetrile and advocated abolishing the FDA. Free market ideologists advocate the policy of laissez faire, with its inherent doctrine of caveat emptor ("let the buyer beware").

Consumerism

Consumer protection law challenges the appropriateness of the caveat emptor principle under circumstances in which buyers and sellers are not equally qualified to judge the worth of the transaction. During the 15th century the concept of caveat vendor ("let the seller beware") became the rule for marketplace situations in which buyers and sellers were on unequal terms.22 The caveat vendor principle was later cited in the court cases that upheld major consumer protection laws. In the first case involving the PFDA, the judge told the jury, "This law was not passed to protect experts, especially not to protect scientific men who know the value and meaning of drugs, but for the protection of ordinary citizens."29 Justice Frankfurter also restated the principle of caveat vendor in a case interpreting the FDCA when he stated, "The purposes of this legislation . . . touch phases of the lives and health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. "29

Federal consumer protection statutes have encoded principles of science into law. By outlawing secret remedies, the PFDA required medicine makers to operate according to the openness of science and professionalism. By requiring premarketing proof of safety and efficacy, the FDCA imposed the scientific standard that no claim is true until it is successfully demonstrated, with the burden of proof resting on the proponents.12

Professionalism: Competition Versus Cooperation

Marketplace competition is antithetic to the scientific aspects of medicine, where researchers, clinicians, regulators, and educators work together for the benefit of humankind. The special privileges that society has traditionally granted to the healing professions are based on this altruistic concept. The Sherman Antitrust Act exempts scientific activity from its rules against monopolies, because lawmakers recognized that cooperative scientific activity is fundamentally different than competitive business activity.

A fundamental change in this traditional view occurred when the Federal Trade Commission (FTC) forbade medical associations from prohibiting advertising as part of their codes of ethics. This action imposed on medical professionalism a feature from the culture of commercialism. The FTC's reasoning was that free market competition keeps prices in check and that the health care industry needed to control its prices. What the FTC failed to fully appreciate was that although health . care delivery is a business, professional medical ethics must predominate in all aspects of patient care. The FTC ruling was only the beginning of the erosion of professional ethics by the principles of commercialism. With managed care, professionalism has been overwhelmed by the commercial ethic.23

The manner in which commercialism perverts health care can be understood by contrasting key aspects that are viewed differently by medical professionalism and consumer protection.

Safety and Efficacy by Semantics Versus Proof

Nonstandard health care promoters persuade patients of the efficacy of their procedures by anecdote, and imply safety by terms such as natural, nontoxic, holistic, and the like. Homeopathy is touted as "the natural way to promote recovery and restore health"18 but offers no sound evidence that it is either safe or effective. Chiropractic and naturopathy claim to be natural and drug-free ways to health but lack proof of safety and efficacy. Traditional healing systems such as Ayurvedic and Chinese medicine claim that having existed for thousands of years validates them but offer little scientific evidence of their real worth.

Patient Satisfaction Versus Proven Effectiveness

Commercialism emphasizes patient satisfaction over proven clinical effectiveness. Placebo therapy, by definition (literally "I shall please"), can satisfy patients. As many as 56% of the users of questionable arthritis remedies reported satisfaction28 which is a figure comparable to that of placebo performance.2 The percentages of cancer patients reporting satisfaction with "unorthodox" treatment were only slightly lower than their satisfaction with standard care.4 Patients of chiropractors were three times as likely as patients of family physicians to report that they were "very satisfied" with the care they received for low back pain. Satisfaction was linked to practice style rather than to factors related to safety or efficacy.5 Patient satisfaction is certainly compatible with sound medicine, but the art of patient care should enhance and not supplant the science of care.

Profit Versus Patient Care

Medical professionalism is rooted in principles established by Hippocrates, who taught humility, social responsibility, and commitment to the patient. In their comparison of the cultures of commercialism versus professionalism, McArthur and Moore23 point out:

The fundamental act of professional medical care is the assumption of responsibility for the patient's welfare-an unwritten contract ... acknowledged by the physician that "we will take care of you."

The essential image of the professional is that of a practitioner who values the patient's welfare above his or her own and provides service even at a fiscal loss and despite discomfort or inconvenience.

Professionalism is dedicated to patient care even when the patient cannot pay. Laws against patient abandonment reflect this concept.

Will It Sell Versus Should It Be Sold?

Commercialism puts profit foremost, and is driven by the "law of supply and demand." The ethics of professionalism require that procedures found to be ineffective are discarded even though they may still fulfill the law of supply and demand. For instance, from 1990 to 1992, the FDA banned or proposed to ban 749 ineffective ingredients used in nonprescription drugs and weight loss products grandfathered by the 1962 Harris-Kefauver Amendment, which required premarketing proof of efficacy.9 There is no indication that the companies that sold these ineffective drugs would have discontinued marketing them just because they did not work. Thus, even "legitimate" companies were perfectly willing to continue to promote useless health products even though doing so would constitute quackery.

Medical professionals are dedicated to testing procedures for safety and efficacy and discarding those that do not pass muster. For example, in the 1950s, internal mammary ligation was used to relieve angina pectoris. Patients reported increased working capacity and less chest pain; however, a test found that patients who received only an incision did just as well as those who had the surgery.6 As a result, surgeons stopped using the technique, not because there ceased to be a marketplace demand, or because patients were dissatisfied, but because the procedure was ineffective. The internal mammary ligation example can be compared with the current marketing of chelation therapy for heart disease. Patient demand and subjective reports of improvement mirror those given for internal mammary ligation. There is strong evidence that the procedure is worthless for cardiovascular disease.8 Nevertheless, renegade physicians have banded together to fight for the right to market chelation for vascular disorders and more than 80 other unapproved purposes." A chelation trade group has become a primary lobbying force for a federal "medical freedom" law under the deceptive title "Access to Medical Treatment Act." A more fitting title would be the "Medical Maverick Protection Act," because such an act would strip patients of protection by having them sign away their rights by means of a consent form. Medical licensing boards would be unable to discipline medical renegades for failing to practice according to professional peer-reviewed standards of conduct. Proponents of alternative medicine are pushing for a two-track system, standard versus alternative, similar to that in Germany.15 This would eventually force insurance companies to pay for nonstandard modalities. Congress has already created a two-track system for nonprescription medicines by allowing potent herbal remedies to be marketed as unregulated "dietary supplements." The folly of a two-track system was addressed in an editorial in the New England Journal of Medicine1:

There cannot be two kinds of medicine-conventional and alternative. There is only medicine that has been adequately tested and medicine that has not, medicine that works and medicine that may or may not work. Once a medicine has been tested rigorously, it no longer matters whether it was considered alternative at the outset. If it is found to be reasonably safe and effective, it will be accepted. But assertions, speculation, and testimonials do not substitute for evidence. Alternative treatments should be subjected to scientific testing no less rigorous than that required for conventional treatments.

The sacred American equality principle is incompatible with a two-track system. Legitimate businesses that bring health products and services to the marketplace deserve a level playing field in which they may compete fairly. Patients, whether they are terminally ill or seeking high-level wellness, deserve equal protection under the law. It would be hard to find a more fitting symbol for a two-track system than the duplicity depicted by Hermes' opposing serpents.

Conclusions

Quackery is the promotion of false and unproven health schemes for a profit. It is rooted in the traditions of the marketplace. Scientific thinking and standards of conduct underlie professionalism and consumer protection law. At the present time, commercialism has over-whelmed professionalism in the marketing of alternative remedies. Neither patients nor legitimate businesses that adhere to the standards of science and consumer protection are well served by a double standard.

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This article was appeared originally in the November 1999 issue of Rheumatic Disease Clinics of North America.

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