Consumer Health Digest #04-08

Your Weekly Update of News and Reviews
February 24, 2004

Consumer Health Digest is a free weekly e-mail newsletter edited by Stephen Barrett, M.D., and cosponsored by NCAHF and Quackwatch. It summarizes scientific reports; legislative developments; enforcement actions; news reports; Web site evaluations; recommended and nonrecommended books; and other information relevant to consumer protection and consumer decision-making.

Appeals court upholds do not call list. A federal appeals court has upheld the government's right to operate a do-not-call registry. In an opinion that applied to four suits by telemarketers, the court concluded:

The primary issue in this case is whether the First Amendment prevents the government from establishing an opt-in telemarketing regulation that provides a mechanism for consumers to restrict commercial sales calls but does not provide a similar mechanism to limit charitable or political calls. We hold that the do-not-call registry is a valid commercial speech regulation because it directly advances the government's important interests in safeguarding personal privacy and reducing the danger of telemarketing abuse without burdening an excessive amount of speech. In other words, there is a reasonable fit between the do-not-call regulations and the government's reasons for enacting them. . . .

The national do-not-call registry offers consumers a tool with which they can protect their homes against intrusions that Congress has determined to be particularly invasive. Just as a consumer can avoid door-to-door peddlers by placing a "No Solicitation" sign in his or her front yard, the do-not-call registry lets consumers avoid unwanted sales pitches that invade the home via telephone, if they choose to do so. We are convinced that the First Amendment does not prevent the government from giving consumers this option.

The registry contains more than 55 million numbers. A Harris poll found that 25% of registrants have received no calls and 53% report getting far less than before. [Taylor H. Do Not Call Registry is working well. Feb 13, 2004]

Court supports FDA policy on saw palmetto claims. The U.S. Court of Appeals for the District of Columbia Circuit has affirmed a lower court ruling that the FDA had the right to deny a petition to legalize the claim that "consumption of 320 mg. daily of saw palmetto extract may improve urine flow, reduce nocturia and reduce voiding urgency associated with mild benign prostatic hyperplasia (BPH)." The petition was filed by Julian M. Whitaker, M.D.; Pure Encapsulations, Inc.; Durk Pearson and Sandy Shaw; and the American Association for Health Freedom, who asserted that the FDA had no constitutional right to suppress "truthful claims" about the effects of foods and dietary supplements on existing ailments. The FDA maintains that claims about effects on existing disease are not within the legal definition of a health claims and that "treatment" claims are permissible only when the products are approved as drugs. The plaintiffs argued that prohibiting such claims on supplement and food levels violates the First Amendment. In similar cases, the courts had limited what the FDA could do to stop truthful claims about the role of food and dietary supplements in reducing the risk of disease. However, this time the Court of Appeals concluded that Congress had not intended to permit claims about treating existing disease and that:

The key step is the . . . principle that classification of a substance as a ''drug'' turns on the nature of the claims advanced on its behalf. That principle, in turn, rests on the idea that claims about a product by its manufacturer and vendors, including product labeling, serve as evidence of the sellers' intent that consumers will purchase and use the product for a particular purpose -- and, therefore, as evidence of whether the product is or is not a drug. [Whitaker et al. v. Thompson et al. Opinion released Jan 9, 2004]

Urology site debunks phony impotence aids. The American Foundation for Urology maintains a Web site that counters the flood of deceptive impotence-cure claims marketed through Web sites and spam e-mail. The site,, was launched in 2000. The site features (a) information about different treatment options, (b) a chat area monitored by a physician, and (c) a confidential registry for erectile dysfunction patients to receive regular updates on treatment information.

FDA bans sale of "low level laser" device. The FDA ordered the Czech manufacturer MediCom to stop marketing its Maestro low level laser therapy device in the United States. [Spears LD. Warning letter to Jan Marek, Jan 12, 2004] The company's Web site suggests that the device is effective for treating more than 70 diseases and conditions. An Australian distributor claims that the device can increase cell metabolism, improve blood circulation, reduce pain, reduce inflammation and swelling, and "energize the cellular structures that operate in creating and controlling electromagnetic energy, which accelerates the healing process." The FDA warned MediCom that medical devices intended to treat disease cannot be legally marketed without FDA approval

Dutch psychic implicated in woman's death. The Dutch Health Inspectorate has called for criminal prosecution of the "psychic medium" Johanna Damman ("Jomanda") for advice she allegedly gave to Sylvia Millecam, a Dutch actress who died of breast cancer in 2001. Millecam was medically diagnosed when the tumor was only 1 cm in diameter and considered curable . The Inspectorate's report states that Jomanda told Millecam that she did not have breast cancer and that Millecam subsequently consulted many other "alternative healers" who said the same thing. [Psychic 'misled actress to hopeless cancer death.' [Expatica News, February 18, 2004] Jomanda's Web site claims that her deceased father is her "guide and the intermediary . . . for so-called spiritual doctors who can use her as a channel/medium to cure diseases of the body and the mind."

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This page was posted on February 24, 2004.