Pseudoscience and the Law: Why Doesn’t the Government Stop the Charlatans?

By Robert Bernstein

Our last Humanist Society talk was by Nick Little, about fake medical treatments that seem to evade government prosecution. The title:
Pseudoscience and the Law: Why Doesn’t the Government Stop the Charlatans?

Nicholas Little is vice president, general counsel, and legal director of the Center for Inquiry (CFI). Nick Little has filed CFI’s groundbreaking consumer protection suits against CVS stores and Walmart for their deceptive marketing of homeopathic products.

CFI is also suing Boiron, the world’s largest homeopathic manufacturer, as well as the FDA to access information regarding homeopathy, which the agency is refusing to release under the Freedom of Information Act.

Little explained this is not a typical lawsuit for CFI. Groups like American Atheists and the Freedom From Religion Foundation have typically sued over matters like displays of the Ten Commandments or crosses on public land.

The Supreme Court (SCOTUS) appears to have a 6-3 “conservative” majority, but it may actually be worse than that on religious matters. He said that Kagan is no friend of the secular. Jackson is new and unknown. Only Sotomayor is a true friend.

Federal courts are threatening to make a nationwide ban on chemical abortion. They are not even trying to pretend to make fair decisions. The Bladensburg Peace Cross is a 40 foot cross in one of the busiest parks in Maryland. SCOTUS ruled it is not a religious symbol.

As reported at our last HSSB talk by Eugenie Scott, Sotomayor introduced a photo of public prayer at a high school football game, which SCOTUS declared was not public prayer at a high school football game.

Historically, SCOTUS has been against rights and blocked progress. The Warren Court gave us great successes. But this was an aberration, not the norm.

The Voting Rights Act has largely been eviscerated by the current Court and the Civil Rights Act is also under attack. Notably, in the case of the infamous gay wedding cake case. This is a throwback to the 1950s era where businesses claimed they did not have to serve Black people as a matter of choice.

There is no magic bullet to solving this. The Pastafarians and Satanists have stepped up to demand equal time as religions. But this may not work.

The topic of Little’s talk was quite practical: Corporations profiting from making and selling fake treatments. Why doesn’t the government stop this?

The default “protection” in the US is “caveat emptor”; let the buyer beware. The magic of the marketplace will ensure that people won’t buy junk. “If you believe that, you have never been to Wal-Mart a week before Christmas!”

In fact, corporations have profited from scams for hundreds of years. Remember “snake oil”?

More recently, the tobacco industry sold doubt about cancer along with their cigarettes. Just as the fossil fuel industry has done with the Climate Crisis. And VW knowingly gamed smog tests on their diesel cars.

What do you call alternative medicine that works? Medicine.

Government is supposed to legislate and regulate medicine. Litigation is supposed to provide enforcement. But there are many problems.

The US has an ongoing battle between the legal roles and responsibilities of state and federal governments. This was supposed to have ended with the Civil War, but it didn’t. Multiple agencies have overlapping authority. In the case of drugs, this includes the FDA and the FTC.

From 1995-2011 4,312 Federal laws were passed. Federal regulations to enforce these laws take up over 180,000 pages in the Federal Register. No one knows what is in there. By some estimates, the average American commits two felonies a day without knowing it.

“Agency Capture” describes the phenomenon of lobbyists buying favor. Even without direct corruption, government officials turn to industry for advice on areas they don’t know about. Some of it is pure sloth.

Little is focusing on homeopathy. Why? Because it is utter nonsense. It is “the Scientology of alternative medicine”!

German physician Samuel Hahnemann invented homeopathy in the 1700s based on two utterly nonsense premises:
    1) Like treats like. Little likens this to having a gunshot victim walk into a hospital and the medical staff shoots him some more.
    2) More dilution of doses makes the medicine more powerful.

A common dilution is 200C. Which is a dilution of one in 100 done 200 times over. There are only about 10 to the 78 atoms in the universe. It is impossible at 200C dilution to have even one atom left.

When the atomic theory was developed, a third principle was invented: Water memory. That somehow the water “remembers” what is dissolved in it. More nonsense.

The 1938 Food, Drug and Cosmetic Act includes the Homoeopathic Pharmacopoeia of the United States (HPUS). Anything listed in this counts as a drug under federal law.

For a new product to be approved, it must demonstrate safety and efficacy to the FDA. But no homeopathic product has ever been proved for safety and efficacy.

It is easy to show why we should not trust Big Pharma: Thalidomide, Oxycontin and the bad behavior of the Sacklers that resulted in vast numbers of opioid addicts. This distrust helped create the world of “alternative medicine” in the 1970s.

1988 brought the FDA Compliance Policy Guide (CPG) that was supposed to regulate homeopathic medicine. But this was never enforced, and was revoked in 2019 and replaced with a “risk based policy”. The government would target clearly harmful products. Such as a baby teething tablet with deadly nightshade in it. What harm is there if it is diluted so there is nothing but water? Well, they got the dilution wrong and there really was deadly nightshade and children died.

The FTC regulates drug advertising and marketing. In 2016 they made an Enforcement Policy Statement requiring scientific evidence. But it is not enforced.

Homeopathic Housecall appears to be concierge medicine, run on line. But is just crazy stuff. They offer a disclaimer that it is “not intended to replace qualified medical attention”.

There are problems with lawsuits. Who to sue? You can’t sue the government for not doing its job.

In a democracy, the claim is this can be solved at the ballot box. That is absurd. There are dozens of issues in every election. It is almost impossible for any one issue to decide an election.

But it is possible to go after manufacturers and retailers. One powerful force behind homeopathy is the claim that it is challenging the power of Big Pharma. Except that homeopathy is also a Big Pharma industry with its own lobbyists.

Wal-Mart and CVS claim to be your friend in health. Boiron is a major corporate manufacturer of homeopathic nonsense. They won’t settle, because selling this nonsense is the basis of their profits.

As we have learned in previous talks “standing” is a way to block lawsuits. Most of the people who buy homeopathic products like them. If you are not a user, you may not have standing. But DC law allows certain non-profit organizations to sue on behalf of others.

Oscillosoccinum is made from the heart and liver of wild ducks. Diluted to the point of being pure water. It has over 25,000 five star reviews on Amazon.

All homeopathic pills are the same: Water. Amazon and Chewy also sell this nonsense for pets.

The legal system does science badly. It is all about persuasion, not facts and evidence.

One thing that would help in the CFI work: Complaints by people who bought homeopathic products by mistake and discovered they did nothing.

One good thing about their lawsuit moving forward: They are able to do discovery and obtain internal documents from homeopathic manufacturers.

Little took audience questions and I raised the first point: That the FDA not only allows nonsense treatments to be sold. They also make it almost impossible to approve products that truly are safe and effective. The process can cost tens or hundreds of millions of dollars. Big Pharma has a monopoly on being able to game this system to their advantage. Little agreed.

Judy Fontana gave the example of cigarettes: Shaming retailers into refusing to sell them. Little agreed there will be a role for public pressure.

Wegmans is a supermarket chain with pharmacies. They do not allow their pharmacists to recommend homeopathic products.

But there is a lot of money to be made selling these products.

One man asked why they are suing the FDA. Little explained this is a Freedom of Information Act (FOIA) issue. That Homeopathic Pharmacopoeia is controlled by the homeopathic industry. You have to pay $20,000 per year for access to it. They will not release that book.

Lynda noted that using a homeopathic treatment for early stage cancer can be fatal if it delays real treatment until it is too late. Little agreed.

Roger complained to a local pharmacist about homeopathic treatments being on display. She told him she has no control over the store display. Little said it is necessary to complain up the chain.

After the talk, everyone was invited to the downtown Rusty’s Pizza for dinner in the upstairs meeting room. In this photo by my wife Merlie, Nick Little is the guy in the white shirt on the left bench. In front of him is Jim Underdown, Executive Director of The Center for Inquiry West in Los Angeles since 1999.

On my right (left in the photo) is Program Chair Judy Fontana. Next to her is Humanist Society President Judy Flattery.

Here Nick Little and Jim Underdown posed together.

Our group then took a field trip to the CVS next door. To seek out homeopathic nonsense “remedies”. Here Nick Little and Humanist Society board member Dave Flattery posed with a display of Oscillosoccinum and related “remedies” containing no actual active ingredient.

For more information about upcoming events with the Humanist Society of Santa Barbara or to become a member, please go to https://www.sbhumanists.org/