Consumer Health Digest #04-17
Your Weekly Update of News and Reviews
April 27, 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.
Australian Government warns advertising outlets to curb "extravagant" health claims. The Australian Competition and Consumer Commission (ACCC) has warned broadcasters and publishers that everyone involved in the preparation, broadcasting or publication of misleading or deceptive advertising is in potential breach of the Australia's Trade Practices Act 1974. [Media outlets placed on notice about misleading advertising. ACCC news release, March 15, 2004] The Commission stated:
One area of concern is our very strong view that advertising agencies and media outlets have a responsibility to ensure that they do not engage in misleading or deceptive conduct in advertising and promotions prepared and published by them. . . .
Broadcasters and publishers will breach Section 52 of the Act relating to misleading and deceptive conduct if they publish advertisements that contain misleading or deceptive statements, unless they are able to avail themselves of the "publisher's defence". This defence will not operate unless the publisher "did not know and had no reason to suspect" that publication would amount to a contravention of the Trade Practices Act. There are circumstances when it will be difficult for a publisher to argue that it did not know and had no reason to suspect that advertising material was false and misleading. These include:
- the advertising claims appear on their face to be extravagant, particularly if they relate to weight loss, exercise, or curatives or to representations as to future matters.
- the representations appear to be clearly contrary to generally known facts. It may also be reasonably apparent on the face of the advertisement that a claim is false, misleading and deceptive.
- the publisher may have been put on notice of grounds to query an advertisement's accuracy, for instance if it is aware of Commission concerns or pending Court proceedings in respect of the goods or services the subject of the advertisement
- the publisher may have previous experience or received complaints which indicate an advertisement may give rise to compliance problems.
The Commission also noted that "Media outlets would be well advised to have in place proper systems and procedures designed to prevent publication of false, misleading or deceptive advertisements."
Court rules against anti-amalgam lawyer. A district court judge has denied a motion to dismiss the American Dental Association's libel suit against Los-Angeles-based attorney Shawn Khorrami. The suit charges that Khorrami has targeted the ADA with an orchestrated "campaign of lies and distortion" to promote himself and his law firm. The suit, filed in May 2002, states:
- Khorrami falsely and maliciously accuses the ADA of defrauding and endangering the lives of the American public by promoting allegedly unsafe dental practices -- specifically the use of dental amalgam fillings -- and exerting "undue and unfair pressure" on dentists as a result of a purported "vested economic interest" of the ADA in amalgam.
- Khorrami has falsely stated that, "When scientifically analyzed, amalgam fillings represent nothing more than a con on the U.S. population, orchestrated by the American Dental Association and its web of constituent associations and component societies."
- Khorrami was well aware that numerous scientific and leading consumer organizations, independent of the ADA, have concluded that dental amalgam is safe.
- The ADA has no vested economic interest in amalgam.
The ADA is seeking compensatory damages for harm it suffered and punitive damages to deter further wrongful conduct against it. In January 2004, the district court judge denied Khorrami's motion to dismiss the suit and concluded that the ADA will prevail if it proves that its allegations are true. The judge's decision noted that so far, during the discovery process, neither Khorrami nor his expert witnesses have provided any evidence that Khorrami's accusations have a factual basis. [Order denying defendant's motion to dismiss. American Dental Association v. Shawn Khorrami. U.S. District Court, Central District of California Civil Case No. 02-3853, filed January 26, 2004]
Illegal cancer vaccine marketer indicted. George Kindness and Amscot Medical Labs have been charged with 21 counts of violating the criminal provisions of the Federal Food, Drug and Cosmetic Act by delivering and conspiring to deliver misbranded and adulterated drugs in interstate commerce. [Indictment. United States of America vs. George Kindness and Amscot Medical Labs, Inc. United States District Court for the Western District of tennessee, Western Division. CR No. 03-20433BV, Filed Nov 2003] According to the indictment:
- Kindness, who resides in Middletown, Ohio, has been Amscot's president, part-owner, and laboratory director since 1992.
- In 1999, the FDA discovered that Amscot had been making "vaccines" from blood and tumor tissues of cancer patients and shipping them to an unidentified co-conspirator who used them to treat patients.
- After the FDA informed Kindness that such treatment was illegal without investigative new drug (IND) approval, an application was submitted.
- The FDA never approved the IND, but the treatment continued.
- The FDA also learned that the co-conspirator was treating patients with a similar vaccine called Theracine, which also lacked FDA approval.
- In 1999, Kindness falsely represented to an FDA inspector that he had an MD degree.
- Throughout 2000, Amscot continued to prepare and ship Theracine vaccines.
In 2001, the United States District Court for the Southern District of Ohio issued a permanent injunction prohibiting Kindness and Amscot from manufacturing, processing, packing, labeling, promoting, and distributing Theracine, any similar drug or any biologic product, or any other "new" drug. Kindness is part of a network that has helped chelation therapists and other mavericks pretend to be doing legitimate research.
Hair-removal product marketer hit for $300,000 penalty. New York City-based Tactica International, Inc. (d/b/a IGIA Inc and Igia.com) has agreed to pay a $300,000 civil penalty for failing to live up to its shipment promises. The agreement settles allegations that the company violated the Federal Trade Commission's "Mail or Telephone Order Merchandise Rule" by failing to ship products to consumers when promised, or in 30 days when no time was promised, and failing to give consumers the option of consenting to the delays or canceling their orders. Tactica markets health and personal grooming products via catalogs, print advertisements, television infomercials, and retail stores. Its products include Epil-Stop, Therma Spa, Electro-Gym, Therma-Cleanse, Sun System, X-Press Iron, Air-O-Sage, Cellussage, Accusage, Microsage, Forever Gone, Denta-Sonic, Platinum Nail, Touch of Diamonds, Ionic Relief, Torbo Jet Spa, Electrosage, Facial-Fit, Lazer white, Contour Rest, Twist-a-Braid, and Electro Fit. The company is prohibited from violating the Mail Order Rule in the future. [Consumers pull hair out over late deliveries; seller of depilatory products settles FTC complaint. FTC news release, April 27, 2004] The Better Business Bureau of Metropolitan New York, which has received more than 500 complaints, gives Tactica an "unsatisfactory" rating.
This page was posted on April 27, 2004.