Consumer Health Digest #11-38

Your Weekly Update of News and Reviews
November 10, 2011

Consumer Health Digest is a free weekly e-mail newsletter edited by Stephen Barrett, M.D., with help from William M. London, Ed.D., M.P.H. 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.

Judge blocks graphic cigarette warnings. U.S. District Judge Richard J. Leon has granted a request from five tobacco companies to block implementation of the FDA's cigarette warning mandate until the court can fully review the situation. Earlier this year, the FDA announced that it had selected nine graphic warnings that it believes are authorized by the 2009 Family Smoking Prevention and Tobacco Control Act. The warnings, still displayed on the FDA's Web site, are intended to increase public awareness of the major health risks associated with smoking, such as death, addiction, lung disease, cancer, stroke and heart disease, and to encourage smokers to quit. They are scheduled to take effect next year, but the judge concluded that they may amount to an unconstitutional infringement of the tobacco companies' right to commercial free speech. The judge's 29-page ruling concludes that the tobacco companies effort to stop the FDA plan is likely to prevail because the required graphics are not "purely factual" but "were crafted to provoke viewers to quit or never start smoking: an objective wholely apart from disseminating purely factual and uncontroversial information." (In other words, Congress and the FDA have the right to try to protect Americans from the ravages of smoking as long as they don't try too hard to do it effectively.) Major health groups are urging the FDA to appeal the ruling.

Delta Airlines won't pull misleading anti-vax "infomercial." Delta Airlines has refused to stop showing a misleading 3-minute video that is included in its Westbound in-flight entertainment programming this month. The video is paid programming produced by In-Flight Media Associates for the National Vaccine Information Center (NVIC) and thus can be considered an infomercial. It discourages people from receiving the flu vaccine by (a) downplaying the seriousness of the disease, (b) failing to encourage vaccination as a preventive measure, and (c) referring viewers to the NVIC Web site, which is filled with negative information about vaccines. The American Academy of Pediatrics has informed Delta that NVIC "opposes the nation's recommended childhood immunization schedule and promotes the unscientific practice of delaying or skipping vaccine altogether" and that airing the video will put children's lives at risk. More than 2,300 people have signed a petition asking Delta to stop airing the video, and several publications have covered the story. Delta officials have replied that they will carefully review future submissions but did not think that the video was sufficiently dangerous to warrant immediate withdrawal. In-Flight Media has also been asked to pull the video. Quackwatch has additional details.

Doctor in nurse-whistleblower case surrenders license. Rolando Arafiles, M.D., has pleaded guilty to one count each of misuse of official information and retaliation and has been sentenced to 60 days in jail and ordered to pay a $5,000 fine. He has also surrendered his medical license. The case involved illegal actions he used in an effort to protect himself from possible disciplinary action by the Texas Medical Board. In 2009, two longtime Winkler County Memorial Hospital nurses complained anonymously to the board that Arafiles had violated state regulations governing doctors. After the board contacted Arafiles about the complaint, he asked Sheriff Robert Roberts—a close friend, patient, and alleged business partner—to use official law-enforcement channels to obtain a copy of the confidential complaint, which he did. As a result, Arafiles and other officials were able to determine the identities of the nurses, which would have been protected from disclosure if the Roberts had not misused his position. The nurses were then fired by the hospital and indicted for misuse of official information. The charge against one of the nurses was dropped shortly before trial; the other was acquitted by the jury. In June 2011, Roberts was convicted of retaliation and abuse of official information and was sentenced to spend 100 days in jail, pay a $6,000 fine, and serve four years of probation. Quackwatch has additional details.

Victims of Canadian scammer get compensated. Five victims including a British Columbia woman who was nearly killed by arsenic poisoning will share CN$340,000 as a result of a civil forfeiture and out-of-court settlement with Selena Tsui, a self-proclaimed "holistic healer," who allegedly promised to bring one client back from the dead. No criminal charges were filed because government investigators felt that they had insufficient evidence to make conviction likely. The government press release states:

British Columbia's Civil Forfeiture Act allows the Province to pay out compensation to eligible victims of an unlawful activity where there is a direct connection between them and the property forfeited by a particular unlawful activity. The five claimants in this case received a pro-rated value of their claimed loss, since at more than $550,000, the value of their claims exceeded the amount forfeited. The Act has been used mainly to help victims of investment scams. The fact that no criminal charges were filed is shocking but not surprising. Quackery and health fraud are rampant in Canada because the government does almost nothing to protect its citizens from them.

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This page was posted on November 12, 2011.