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The “CAM” Consumer: Misled and Abused

There is a disturbing lack of protection for the consumer of “complementary and alternative” products and services. I can think of no other area of commerce where misleading, as well as out and out false, information is so regularly employed, without consequence, to entice the consumer into forking over his hard-earned cash. Nor do I know of any other manner of goods or services where giving consumers patently false information is protected by law.

Consider first the fact that nonsensical gibberish is enshrined in state law in the form of “CAM” practice acts, which give practitioners of implausible, if not wholly discredited, diagnostic methods and treatments carte blanche to ply their trades. For example, as has been discussed before on SBM, state law defines chiropractic as the detection and correction of subluxations, which, as many chiropractors themselves admit, do not exist. State practice acts define acupuncture in such pseudoscientific terms as “modulation and restoration of normal function in and between the body’s energetic and organ systems and biomechanical, metabolic and circulation functions using stimulation of selected points.”

As well, naturopathy practice acts allow “mixing and matching treatments including traditional Chinese medicine, homeopathy, herbalism, Ayurvedic medicine, applied kinesiology, anthroposophical medicine, reflexology, craniosacral therapy, Bowen Technique, and pretty much any other form of unscientific or prescientific medicine that you can imagine.” State practice acts also permit the indiscriminate use of the term “doctor” and “physician.” Scope of practice is broadly defined as “primary care.”

To add insult to injury, state law generally gives the Boards governing these practices exclusive authority to regulate their “professions.” This has resulted in rules which incorporate even more pseudoscientific nonsense into the scope of practice. In Florida, for example, a Board of Acupuncture rule allows aromatherapy, electric moxibustion, color therapy, homeopathy, ion pumping cords, iridology, kirlian photography, magnet therapy, photonic stimulation and sonopuncture.

These Boards usually have exclusive jurisdiction to adjudicate complaints against practitioners. Thus, the unfortunate consumer who complains to a “CAM” provider Board that a practitioner failed to disclose the scientific implausibility and lack of evidence of effectiveness of a particular therapy is likely to get a frosty reception. Unfortunately, even the Medical Boards may turn a deaf ear to consumer complaints about the use of “CAM” due to the squishy double standard for “CAM” versus “conventional” medicine adopted by the Federation of State Medical Boards.

And then, there’s the feds

All those problems and we haven’t even scratched the surface of federal law yet.

Although the U.S. Food and Drug Administration is charged with regulating dietary supplements, a 2009 Government Accountability Office report found

surveys and experts indicate that consumers are not well-informed about the safety and efficacy of dietary supplements and have difficulty interpreting labels on these products. Without a clear understanding of the safety, efficacy, and labeling of dietary supplements, consumers may be exposed to greater health risks associated with the uninformed use of these products.

And pity the poor consumer lulled into complacency by the knowledge that the FDA has regulatory authority over homeopathic products. As a federal district court recently concluded:

  • “Unlike non-homeopathic OTC drugs, homeopathic OTC drugs . . . are not evaluated by the FDA at all.”
  • “The Court is unaware of what standards, if any, exists to ensure that homeopathic OTC drugs are safe and effective.”
  • “[T]he FDA has largely abdicated any role it might have had in creating standards for homeopathic OTC drugs, and has instead attempted to delegate this authority to the non-governmental . . . .”
  • “[T]he FDA explicitly states that it makes no guarantee about the safety or efficacy of homeopathic OTC drugs . . . .”

Lessons from the financial meltdown

The 2008 financial debacle highlighted the need for enhanced protection for consumers of financial products and services. This resulted in the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010. The law created the Consumer Financial Protection Bureau (CFPB), operating under the auspices of the Federal Reserve and responsible for regulating consumer financial products. The CFPB will consolidate existing consumer protection programs now scattered across several agencies, which were widely criticized for doing a poor job in the past.

The Bureau has the power to make and enforce rules for banks and other financial services providers which aim to protect consumers from deceptive and abusive loans and other financial products and services. According to the CFPB website, part of this responsibility will be to ensure that “consumers are provided with timely and understandable information to make responsible decisions about transactions involving consumer financial products and services.”

The Bureau also has the authority to conduct examinations of financial services providers and collect and tract consumer complaints about them. For example, if you have a gripe with your credit card company, you can go on the CFPB website right now and file a complaint.

Perhaps it is time to grant similar protections for consumers in the “CAM” marketplace. In spite of the fact that many people would rank their health as more important than their financial condition, their purchase of financial services and products now appears to be far more protected from unfair, deceptive, or abusive practices than their purchase of “CAM” products and services.

Despite considerable political wrangling over the CFPB’s start up, last fall the Bureau published a Supervision and Examination Manual on its website detailing how the CFPB will oversee consumer financial service providers. This includes guidance on unfair and deceptive acts and practices.

In some respects these guidelines are similar to those already in place at the Federal Trade Commission. Yet Congress, in creating an agency specifically overseeing the consumer financial industry, obviously saw a need not met by current FTC regulation - as well as other existing regulatory protections - in the consumer financial markets.

One could come to the same conclusion regarding CAM – that even though some state and federal regulation is already in place (such as the FDA’s authority to regulate dietary supplements) it is inadequate to address the specific abuses of CAM practices and products in the consumer marketplace. In fact, as we have seen, in some instances these abuses are actually facilitated.

How it works

Let’s take a closer look at how consumer financial regulation might inform consumer CAM regulation. According to the CFPB’s Manual, an unfair act or practice is one that

  1. Causes or is likely to cause substantial injury to consumers,
  2. Is not reasonably avoidable by consumers, and
  3. Is not outweighed by countervailing benefits to consumers or to competition.

Significantly, an act or practice causing a small amount of harm to a large number of people (think of, for example, a purchase of a homeopathic product) can meet the test for “substantial injury.” Actual injury is not required in all cases – a significant risk of concrete harm is sometimes sufficient.

According to the CFPB, a representation, omission of information, act or practice is deceptive when

  1. It misleads or is likely to mislead the consumer,
  2. The consumer’s interpretation of the misrepresentation (etc.) is reasonable under the circumstances, and
  3. It is likely to affect the consumer’s choice or conduct (in legal parlance, it is “material”).

“Materiality” is presumed in some cases. Express claims about a product or service are presumed material, as is information about their basic characteristics, like costs or benefits.

The CFPB can also go after “abusive” practices and products. While the agency has yet to issue guidance on how it will enforce this authority, the Dodd-Frank Act defines an “abusive” act or practice as, among other things, one that takes advantage of the consumer’s reasonable reliance on the seller of financial products or services to act in the consumer’s interest.

Could it work for “CAM” consumers?

If federal law protected consumers of CAM products and services as it now protects consumers of financial products and services, and created a Consumer CAM Protection Bureau (“CCPB”), how might consumers benefit? (I don’t know what our new law would be called, although we can be fairly certain it won’t be the Hatch-Burton-Harkin CAM Reform and Consumer Protection Act of 2012.)

For one thing, instead of being spread among numerous federal and state agencies, we would have a single agency focused solely on looking over the collective shoulder of CAM product and service providers, a group that sorely needs some additional supervision.

For another, I imagine mere knowledge that one is being watched might jump start the Herculean task of shoveling all the crap out of CAM practices and products. (Of course, whether anything might be left at the end of the clean – up is subject to speculation. As has been noted on this blog before, if it is plausible and works, it’s plain old science-based medicine, not “complementary and alternative” or “integrative” medicine.)

CAM consumers would have access to accurate and reliable information about CAM products and practices, including the meaning of terms (to the extent they have any meaning) used in selling them to the public. Financial consumers can find out answers to questions such as “What is a ‘daily periodic rate’?” and “What is the difference between a fixed APR and a variable APR?” Why shouldn’t CAM consumers be entitled to similar accurate and unbiased information presented in an easily understood manner, such as:

Q:  What is a chiropractic subluxation?

A:  The chiropractic subluxation is allegedly a misalignment of the spinal vertebrae purported to interfere with “nerve flow” between the brain and other organs, thereby causing disease. However, in reality it doesn’t exist and the detection and correction of subluxations will not do you any good.

Or:

Q:  Does acupuncture work?

A:  No. It is highly implausible and many studies show that it is no more effective than placebo.

If this seems somewhat silly, I ask you: why shouldn’t consumers have this information prior to purchasing CAM products and services? If a consumer needs to know what a variable APR is before deciding to borrow money, is it any less important to know whether acupuncture is beneficial before spending money on acupuncture services?

A prohibition against unfair and deceptive acts or practices, if defined in same manner as the Dodd-Frank Act, and given its own dedicated oversight and enforcement bureau, would go a long way toward halting the sale of nonsense. For example, I think there is little doubt the CAM Bureau would take a dim view of a reiki practitioner telling a consumer that reiki will relieve pain (or that reiki can do anything, for that matter) because, as we know, this would mislead the consumer into thinking that reiki is effective, when we in fact know that it is both highly implausible that it would work and that it does not in fact work.

If reiki were offered by an M.D. we might well find ourselves spilling over into the category of “abusive” practices, as, of course, any consumer would reasonably believe that her M.D. is acting in her best interest.

In fact, over time, I imagine these measures would leave few CAM products or practices standing. Given access to accurate and unbiased information about CAM, I’ll wager that not many consumers who reviewed that information would choose to purchase it. For those who do seek it out, sellers would be prohibited from misleading folks about what exactly it is they are selling, which, we might guess, would lead to severely diminished sales.

Conclusion

The financial services industry is far larger than the business of CAM and creating a whole federal bureau to fight its abuse of consumers is likely overkill. But the fact remains that the patchwork of state and federal regulation now in place is inadequate to the task. Perhaps a smaller unit within a federal agency (the FTC might be a candidate) would be sufficient if it were solely dedicated to protection of CAM consumers and given adequate authority by Congress to make and enforce rules governing unfair and abusive practices and handle consumer complaints.

Posted in: Acupuncture, Chiropractic, Energy Medicine, Herbs & Supplements, Homeopathy, Legal, Naturopathy, Politics and Regulation

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23 thoughts on “The “CAM” Consumer: Misled and Abused

  1. It’s just out and out fraud. There’s no other word for it. These psychopathic chiropractors and naturopaths advertise themselves as “physicians” and “family doctors.” These a-holes are completely incapable of treating even a single disease, and yet they put themselves out there as able to take care of all complaints that a person could have. They’re just idiots. They’re idiots who are so completely devoid of medical knowledge that they actually believe they are offering up good advice.

    The USA has just turned into such a weak country full of crybabies. These quacks are small in number but loud in voice, and everybody’s so scared to just say “no, you’re an idiotic psychopath, and you do NOT deserve the chance to spread your idiocy to others. You do not have the right to advertise yourself as a person of medical authority and distribute potentially fatal advice, you dummy.” Instead we spent millions and millions pacifying these scammers and allow them to advertise themselves as “doctors” and in the mean time trick gullible and naive (and potentially stupid) students into taking out hundreds of thousands of dollars in students loans for an absolutely worthless “doctorate.”

    I simply can’t imagine a worse kind of person than a quack who steals money from the sick. I can’t believe these idiots are licensed and allowed to run businesses in the USA or any other country. They’re just scum. Pure scummy criminals.

  2. mattyp says:

    Jann,
    Were you aware that here in Australia, the NHMRC is considering declaring homeopathy unethical due to their claims?
    NHMRC is the National Health Medical Research Council, which administers health and medical research funding on behalf of the Australian government.
    Cheers,
    Matt

  3. Jann Bellamy says:

    @mattyp

    “Were you aware that here in Australia, the NHMRC is considering declaring homeopathy unethical due to their claims?”

    No, I wasn’t. That is certainly good news. I hope this spreads to other countries. I am aghast that here in the U.S. prescribing homeopathic remedies is not considered substandard medical practice by the state medical boards, as far as I can tell. The U.S. Congress could easily outlaw the sale of this stuff but it apparently prefers to pretend that the FDA regulates homeopathic “remedies.”

  4. geack says:

    Sadly, I suspect there would be enormous consumer backlash against your consumer protection plan. The difference between CAM and financial fraud is that the money guys haven’t yet figured out how to convince their “clients” that being robbed is good for them…

  5. Janet Camp says:

    Ever since the Dietary Supplement Health and Education Act (DSHEA) of 1994, the door was swung wide open to not have to meet FDA’s rigorous scientific criteria for safety or efficacy of supplements. Most of the rest followed quickly and was further aided by the creation of NCCAM (National Center for Complementary and Alternative Medicine).

    Add these two to the cultural imperative to respect “belief” of any kind (short of something like Jonestown)–not to mention the fundamental lack of the most basic scientific principles (see the comments section of any NY Times health or medical article!)–and I see little hope for progress outside this and a few other blogs and organizations attempting to promote science and science literacy.

    Although I think that SkepticalHealth is a bit too “colorful” with his language, I agree that until we openly call these people (and the members of Congress who support them) exactly what they are, we won’t see meaningful legislative change. Of course, that doesn’t mean we can’t keep trying to reduce the numbers of people who seek these “treatments” to begin with.

  6. Janet Camp says:

    oops! …not to mention the fundamental lack OF KNOWLEDGE of the most basic….

  7. DugganSC says:

    I suspect that there would also be a lot of blowback with it being perceived as a monolithic business trying to maintain its monopoly. Truth aside, most CAM practitioners have themselves portrayed as “the little guy”, so this would go over about as well as Microsoft trying to get a law passed to regulate Linux distributions to ensure that they followed the standards set out by Microsoft for operating systems. Much like how CAM is regulated by CAM, this would be seen as Big Pharma regulating CAM according to Big Pharma’s standards which, big surprise, Big Pharma is already following because they get to make up the standards. Or, using the financial institution model, if the large banks had started trying to introduce laws regulating Credit Unions out of business.

    Don’t get me wrong. I think it’s a marvelous idea, but you’d have to do a lot of education to avoid being seen as the big bad guy here.

  8. Barry2 says:

    While the proposed regulations would be nice, I think government can only do so much to protect people from themselves, especially in countries with freedom of conscience. Perhaps education would be more promising. What’s being done to get skeptical education into the schools? Local CAM practitioners would protest to school boards, but it would be great if science classes included sections on evaluating health claims. And what about protests and leafleting outside of clinics? If it can be done for abortion, why can’t it be done for CAM?

  9. ithacaartist says:

    “Given access to accurate and unbiased information about CAM, I’ll wager that not many consumers who reviewed that information would choose to purchase it.”

    This would presume to a great degree that people behave rationally. If you bet on this, better save out at least enough for rent! Fence-sitters, or perhaps individuals coming to the question cold–never having heard about CAM one way or the other–may have a chance to help you win that wager. Humans are like the flying sheep (notice that they do not so much fly, as plummet): “Once they get an idear into their ‘eads, there’s no shiftin’ it.” Randi calls it “The Unsinkable Rubber Duck Syndrome.”

  10. chaos4zap says:

    I think just the act of informing the public could go a long way. Some CAM practices basically rely on the ignorance of the general population on what it is that they are really selling to thrive. I have had many, many conversations with random people about Homeopathy and not a single one knew what it was. The response you always get is something like “….oh, you mean like supplements and herbs?” That is by and large the idea that people have of Homeopathy. They have a tenuous grasp of what it is and what they think it is, and barely understand, is way off to begin with. Chiropractors are the same way. People just assume they are MD’s that specialize on back, neck and joint pain. Most have no idea that they haven’t gone to medical school and the non-sense that lay’s behind their fundamental views on diagnostics and treatment. It should be criminal for D.C’s to refer to themselves “Dr”, which is nothing more than an easy way to confuse and mislead the public, while providing themselves with credibility that that do not deserve. Maybe if people knew the truth and the whole truth before heading down the slippery road of Alt Med, they would still go for it anyway….but surely it would make some difference.

  11. annappaa says:

    What do you think the chances are that our country could see meaningful CAM regulations in the near future? I’m so frustrated by the flat-out lies and misinformation that are being spread, but feel powerless to do much to stem the tide. All I can do is talk to people about what I think, and as time goes forward I am getting more and more likely to speak out, despite my introverted and nonconfrontational manner. But it doesn’t seem like nearly enough. People’s lives are on the line.

  12. Jann Bellamy says:

    @annappaa

    I think we all share your frustration, which is why we do what we do. I’m afraid I don’t see a regulatory solution in the near future. In the meantime, keep up the good work and speak out against this nonsense. You can refer people to this blog and to the websites listed here. As for as I know, Quackwatch (www.quackwatch.org) is the only website that has a comprehensive list of quack therapies and information about them. A new organization, the Institute for Science in Medicine (http://www.scienceinmedicine.org), is drafting policy statements on various “CAM” subjects and a few are already posted — more to come. There is a policy statement on licensing “CAM” practitioners.

  13. annappaa says:

    Don’t get me wrong, I love websites like Science-Based Medicine and Quackwatch. I wonder if the language might be alienating to people who are distrustful of science or are put off by a word like “quack,” which sounds like a slur to them. I don’t think much of anything we can say will win over most true believers, but there could be people straddling the fence who can be reached by good evidence.

    Perhaps we can have some success framing these issues with their language. In one piece I wrote, I said that “Knowing how to evaluate sources, claims, and evidence is empowering on a personal level.” Yes, it was an attempt to co-opt the language used by many alt-med/”natural” types who speak of how empowering it feels to be “freed” from conventional medicine, but I also deeply believe that learning critical thinking skills IS incredibly empowering. I understand feeling powerless within the “conventional medicine” system, but I think they are deluding themselves to feel empowered by receiving treatments for which there is no evidence. So we can keep the “empowerment” frame but instead talk about how we can truly empower ourselves.

    Thanks for the link to the Institute for Science in Medicine — hadn’t seen that one before!

  14. annappaa says:

    Reiterating my thanks for the Institute for Science in Medicine — I’m looking at the list of fellows and it’s a pretty good compendium of some of my favorite people in the anti-pseudoscience movement. :)

  15. BillyJoe says:

    “Thanks for the link to the Institute for Science in Medicine”

    Their website needs a lot of work.

  16. William M. London says:

    I agree that consumer protection related to health care is important and that it is fine to make an analogy with consumer protection related to financial services. My concern is that it is a mistake to attempt to protect consumers in a way that treats “CAM” as if it is a meaningful category of health care. See:

    http://www.sciencebasedmedicine.org/index.php/please-dont-define-complementary-and-alternative-health-practices/

    Herbal products are a good example of poorly regulated products promoted as “CAM.” Readers may be interested in considering various proposals (dare I say alternatives?) for improving consumer protection related to such products. See for example:

    1. http://www.ncahf.org/pp/herbal.htm

    2. my discussion of “PRIVATE REGULATION MODELS PROPOSED FOR HERBAL PRODUCTS” at http://www.ncahf.org/nl/2000/11-12.html

  17. stanmrak says:

    “I can think of no other area of commerce where misleading, as well as out and out false, information is so regularly employed, without consequence, to entice the consumer into forking over his hard-earned cash. Nor do I know of any other manner of goods or services where giving consumers patently false information is protected by law.”

    I work in advertising. What you describe here occurs in every corner of every market for goods and services in America, including the medical profession. CAM is hardly the worst offender. You would be outraged, if you only knew.

  18. @stanmrak:

    Just out of curiosity, which other markets give false hope to dying cancer patients, steal money from them, and convince them to use completely useless treatments in lieu of the state of the art treatment, which regularly results in an otherwise preventable death?

  19. ConspicuousCarl says:

    Headlines from the FTC website THIS WEEK:

    “FTC Action Results in Ban Against Couple from Telemarketing, Timeshare Resale Services”
    “FTC Charges that Auto Loan Schemes Falsely Promised They Could Stop Consumers’ Cars from Being Repossessed”
    “FTC Action Leads to Court Order Banning Final “U.S. Homeowners Relief” Defendants from Debt and Mortgage Relief Business”
    “FTC Approves Final Order Settling Charges With Upromise”
    “FTC Charges Payday Lending Scheme with Piling Inflated Fees on Borrowers and Making Unlawful Threats when Collecting”
    “FTC Case Against Deceptive Robocallers Leads to Record $30 Million in Civil Penalties”

    When someone in a non-CAM industry engages in BS, including advertising non-existent products or benefits, it is recognized as outright fraud and prosecuted.

    But when someone sells non-existent “medicine” like homeopathy, they get away with it.

  20. Jann Bellamy says:

    @ William M. London
    “My concern is that it is a mistake to attempt to protect consumers in a way that treats “CAM” as if it is a meaningful category of health care.”

    I absolutely agree. A very good point. I should have added in the post that this type of regulation is inferior to doing away with such practices altogether and it is suggested only because, for now, we are stuck with “CAM” and poor regulation of same.

    @ stanmark

    “What you describe here occurs in every corner of every market for goods and services in America, including the medical profession. CAM is hardly the worst offender.”

    Obviously, I can’t evaluate this statement without your giving me some examples. I realize that you cannot violate your clients’ confidences but I imagine you could provide examples from companies that are not your clients. I also assume you would be able to cite to some particular state or federal statute or regulation that incorporates pseudoscience in the same manner as the “CAM” practice acts without violating any client confidences, as that would be a matter of public record.

  21. llw0003 says:

    I’m concerned at the number of people I know, educated people, who go to, and believe, in naturopaths. In San Francisco, these “doctors” charge loads of money for their quackery.

    In my earlier and more naive days, I tried out many of these charlatans due to Fibromyalgia. None helped me because I am not very susceptible to placebo and I’m a skeptic by nature.

    I do want to point out that some of these treatments can be very dangerous.

    I had acupuncture performed many times to no avail. But one time, the last time I ever had it, the “doctor” went in too deep with a needle on my chest, near my rib. It collapsed my lung. I had pain and breathing problems after the treatment, but it never occurred to me or my acupuncturist that my lung had been deflated.

    Luckily, the next day my rheumatologist had an x-ray taken and saw the pneumothorax. Most people have no idea of the potential dangers of acupuncture.

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