Suing for Science

Nicholas Little

If flipping through the pages of Skeptical Inquirer shows us anything (and it does—the editor made sure I put that in), it is that science is misunderstood, misused, and misrepresented throughout our society. And if the United States is known for anything, it’s for a system where if you are wronged, the first reaction is to sue—and sue everyone. So why, I am frequently asked, aren’t there more science-based lawsuits and court cases?

In preparation for this article, I asked friends to name famous science lawsuits. And all people came up with was the Scopes Monkey Trial (or, sometimes, the “intelligent design” case of Kitzmiller v. Dover Area School District1). But often it appears there is a restraining order in force between the law and science.

Here are a few explanations of that and a description of how the Center for Inquiry (CFI), which includes the Committee for Skeptical Inquiry, managed to work its way around that and file not just one but two major lawsuits challenging the method of sale of homeopathic, pseudoscientific nonsense in CVS and Walmart stores in the District of Columbia.

1. It’s not actually true; there are plenty of “science” lawsuits.

These tend to be intellectual property cases and rarely make big news, though they can have a large impact on consumers. One of the largest cases I worked on as a for-profit attorney was such a case, regarding patents on the process for attaching covers to golf balls. Had the final outcome of the case been different, one of the top-selling golf balls in the world could have been forced off the market. That’s golf, though, which is hardly a life-or-death situation. But in cases throughout the federal court system, the availability and profitability of thousands of product lines are determined in products as diverse as pharmaceuticals, telecommunication devices, genetically modified foodstuffs, and so on.

2. Lawyers aren’t scientists.

Sure, there are intellectual property lawyers with undergraduate science degrees, sometimes even postgraduate ones. But coming across a practicing lawyer with significant experience in, and a deep understanding of, any scientific field is rare indeed. And if that is the situation with lawyers, it is even more so with judges. Moreover, the Seventh Amendment to the U.S. Constitution provides that “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Intellectual property cases are such suits. Therefore, in a federal scientific case, a lawyer, often with no scientific background, presents a case to a jury, made up of the general public, in front of a judge, usually also without scientific knowledge. The mangling of science that occurs is almost inevitable and rarely presents good opportunities for public coverage via the media.

3. The expert witness system is flawed.

Because of the above-noted lack of scientific expertise in the courtroom, the role of “explainer” tends to fall to expert witnesses. And while there are many brilliant, lucid, and articulate experts out there, the court system is not set up to ensure only scientific truth reaches a jury. Instead, the adversarial process is used: each side presents its own expert witness or witnesses, and the jury (or judge during the written stages) determines credibility and applies the information provided. While expert witnesses can be ruled as not qualified to testify,2 this determination is made by judges who tend to grant broad leeway to would-be experts. Scientific testimony is then in the hands of competing paid expert witnesses, with the result that whoever is most persuasive wins out, not who is most scientifically accurate.

4. Suing the government is really tough.

Much of where science would play an important role in non-intellectual property matters falls not to the traditional legal system but instead the realm of government regulations. Exhaust emissions from cars, levels of pollution in water and food, the approval of new medications, and other areas are presided over by executive agencies. And while such determinations by the government are not unchallengeable—and decisions by agencies can be and are the basis of court cases—the court system largely defers to agency interpretations of congressional commands. Even getting in the door of the court is tough; to have your case heard, you must show standing. In other words, you must show that you have sufficient connection to and have suffered sufficient harm from the challenged action. This bar seems to be being constantly raised by the court system, making challenges to government action harder and harder. This, combined with the deference shown by courts to agency decisions, is the product of our separation of powers. The courts feel, largely, that “bad” decisions by government agencies should be rectified by the democratic process, not by unelected judges.

So as we can see, the federal court system is poorly prepared to handle scientific matters, avoids handling them if at all possible, and often handles them pretty badly when it does address them. As a result, we at CFI spent years, frustrated, pondering over how to bring a court case challenging any of the forms of pseudoscience that plague society. We decided early on to focus on homeopathy for multiple reasons. First, homeopathy is a booming business, with billions of dollars spent each year on it in the United States alone. Second, homeopathy is completely laughable in its lack of scientific validity. It’s not just that all research shows homeopathy does not have any effect above that of a placebo, the ridiculous notion of massive levels of dilution and the invented excuse of “water memory” upon which homeopathy is based mean that it simply cannot have any effect above that of a placebo. Third, homeopathy is widely visible, sold on our pharmacy shelves next to Tylenol and Robitussin, unlike quackery such as Reiki healing and acupuncture, which the recipient must at least make some effort to seek out.

But we quickly ran into roadblocks. Homeopathy is, to at least an extent, regulated by both the Federal Drug Administration (FDA) and the Federal Trade Commission (FTC). In fact, the FTC has reasonably recently issued guidelines for the labeling of homeopathic over-the-counter products.3 Unfortunately, they haven’t taken any real steps to enforce those guidelines, and, as I’ve noted, suing a government agency for not doing its job is next to impossible.

The second significant problem was that of standing. CFI, as an organization, hasn’t been directly harmed by homeopathic manufacturers or retailers. Those who are harmed and thus have standing to sue fall into three overlapping groups: those who have taken tainted, potentially harmful homeopathic products; those who have taken homeopathic products and so suffered longer symptoms, or even permanent damage, from not taking real medicine and relying on homeopathic nonsense; and those who have purchased homeopathic products and wasted their money on water and sugar pills.

Those who have taken impure products or who have suffered significant permanent harm, such as children who have been left with hearing loss as a result of reliance on homeopathic eardrops, are hard for an organization such as CFI to locate. While they can sue the manufacturer of the product, they are likely to be represented by plaintiff law firms and are interested largely in a financial payout. For the overwhelming majority of those duped into homeopathy, the harm is longer suffering of a treatable condition and the financial damage of buying worthless products. Not only are most of our members and supporters already aware of homeopathy’s bogus standing—and so are unlikely to have purchased such products—CFI has no way of gathering those who have suffered this harm (many of whom still believe in the efficacy of homeopathy) into a plaintiff’s class that can gain the attention of a giant manufacturer such as Boiron.

This, then, was the dilemma. The government requirements for homeopathy are laughably low, and where the homeopathic manufacturers failed to follow them, the government failed to act. The individual harm to most consumers of homeopathy, even if they could be convinced of the worthlessness of the product they bought, is so low that motivating them to join a lawsuit would be almost impossible. For years, this seemed insurmountable.

Washington, D.C., Consumer Protection law, however, came to the rescue. Under District of Columbia law, consumers have an enforceable right to truthful information about products sold to them. And, most important, court decisions applying that law have made clear that it is not just the consumer that can sue; organizations such as CFI can act on behalf of the general public and bring suit to challenge breaches of this right. While the manufacturers of homeopathy could state that they have printed what the FDA and FTC require on their packaging and so claim some form of safe harbor, the retailers also make claims about the products in how they choose to market and display them. And if these claims are untrue, then they are actionable under the D.C. Consumer Protection statute.

When you walk into a CVS, Walmart, or any other large retailer that has a pharmacy section, you see signs breaking down the aisles by ailments. There is a pain relief section, a cold and flu section, and an allergy relief one. In these stores, homeopathic products are sold in these sections alongside science-based remedies with no distinction. Oscillococcinum, a 10400 dilution of the heart and liver of the Muscovy duck that claims to treat “cold and flu symptoms,” is displayed next to Nyquil. Arnicare, allegedly containing wolfsbane, sits alongside Advil. Even homeopathic treatments for asthma and children’s allergies are displayed next to real medicine for these serious conditions.

CFI’s case is simple. By displaying homeopathic products next to science-based remedies, retailers such as CVS and Walmart are deliberately blurring the distinction between the two and trying to imbue the homeopathic products with the reputation for efficacy of the science-based medicines. By placing a homeopathic product under a sign reading “cold and flu,” the retailer is making an affirmative claim that this product is a treatment for colds or the flu. Of course, there are no homeopathic medicines or remedies. There are no homeopathic products that actually treat cold and flu, relieve pain, or treat teething problems in babies at any level above that of a placebo.

By their placement, both in labeled sections and next to real medicines, retailers such as CVS and Walmart are making affirmative claims about homeopathic products. And those claims are demonstrably false. Every time a consumer buys one of those products, CFI maintains that the store has broken the law. According to the statute, the penalty for each breach is either the amount of the fraud ($26.49 for Oscillococcinum in CVS4) or $1,500, whichever is larger.

CFI’s suits against CVS and Walmart are different from the typical suits homeopaths have faced. When large class actions have been brought by plaintiff’s lawyers, the manufacturers have faced a choice: fight the suit or pay a settlement. CFI did not, however, bring this suit looking for a financial settlement. There is no option for the retailers to simply write a check and continue as before. To settle this suit, the retailers must stop defrauding consumers. Homeopathic products, if they are to be sold, should be clearly displayed as such and not intermingled with real medicine. No consumer should purchase homeopathic products by mistake or having been convinced by the retailer’s placement and marketing that they are as effective as real medicine.

Suing to control pseudoscience isn’t easy. But CFI has worked out a way we can protect consumers, and we will see just how much retailers are willing to risk to continue to display homeopathic snake oil alongside real medicines. CVS and Walmart pride themselves on being there to help with their customers’ health care choices. It’s time for them to stop pushing homeopathic nonsense onto those customers.

 


Notes

  1. 400 F. Supp. 2d 707 (M.D. Penn. 2005)
  2. Federal courts here use the standard as laid out in the Federal Rules of Evidence Rule 702, based on the Supreme Court case Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 578 (1993) and following cases.
  3. https://www.ftc.gov/news-events/press-releases/2016/11/ftc-issues-enforcement-policy-statement-regarding-marketing
  4. https://www.cvs.com/shop/boiron-oscillococcinum-quick-dissolving-pellets-prodid-706558

Nicholas Little

Nick Little is the Legal Director of the Center for Inquiry, based out of Washington, D.C. After his education at Oxford University and the University of Warwick in the U.K., Nick moved to the United States and received a law degree from Vanderbilt University. He joined the firm of Howrey, LLP and litigated national and international antitrust matters, as well as a series of pro bono engagements. Nick successfully represented an apostate from the Middle East, who faced deportation to and execution in his native Sudan for the crime of converting away from Islam, winning him asylum in the United States. He also worked with mentally ill New Yorkers to ensure adequate provision of state resources enabling patients to leave institutions and safely and productively live in the community; represented hearing disabled citizens in their efforts to ensure local hospitals provided sign language interpreters as required by the Americans With Disabilities Act; and represented individuals in complaints of malpractice against the D.C. Metropolitan Police. When his firm closed, Nick moved to the non-profit sector and accepted a position with CFI. Aside from internal legal work for CFI, Nick has filed amicus briefs in the Hobby Lobby Supreme Court case and the Seventh Circuit challenge to unfair tax breaks given to housing allowances paid to religious ministers. Nick is always seeking cases in which CFI can involve itself, either as an amicus in an existing matter, or directly representing a plaintiff.