***** Pamphlet from the National Council against Health Fraud ***** AVOIDING LEGAL PROBLEM

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***** Pamphlet from the National Council against Health Fraud ***** AVOIDING LEGAL PROBLEMS ----------------------- Combatting health fraud, quackery, and misinformation understandably exposes activists to an increased risk of threats of lawsuits or actual suits. Quickness to sue opponents is a common characteristic of quacks. Quacks usually sue to harass or gain a public forum, not because they expect to succeed. However, these guidelines are not intended to take the place of consultation with legal counsel, nor can following them prevent legal action. These guidelines will familiarize you with some of the common pitfalls in free expression. Familiarity with these pitfalls should signal when you need to consult with a lawyer on a prophylactic basis in order to diminish the chance of a successful lawsuit against you. TYPES OF CHARGES USED TO INTIMIDATE ACTIVISTS According to one legal expert, there are five typical charges that are pursued, usually without legal merit or success, against citizens and organizations who have simply exercised their First Amendment rights of free speech in opposition to someone believed to be acting contrary to the public interest. 1. Defamation. 2. Business wrongs (i.e., interference with business, with contract, with economic advantage. 3. Judicial wrongs (i.e., abuse of process, malicious prosecution). 4. Civil rights violations. 5. Conspiracy. This pamphlet deals only with one of these: defamation. However, some general advice is applicable to any critical public expressions. IMPORTANT TERMS AND CONCEPTS DEFAMATION: A statement or other communication to the mind of another is defamatory of a person if it: (a) holds him up to hatred, contempt, disgrace, or ridicule; or (b) tends to injure him in his office, business, trade, or profession. SLANDER: Slander generally refers to defamation conveyed to another person orally, by gestures, mocking imitation, and so forth. LIBEL: Libel generally refers to defamation communicated in a permanent form (it need not be immediately conveyed to another person) such as writing, painting, caricature, effigy, emblem, and so forth. BAD FAITH: (see "fraud" in GLOSSARY) GOOD FAITH: A false statement mistakenly made by someone who believed it to be true is said to have been made in "good faith". MALICE: Something, in a jury's judgement, done with ill will or spite. INVASION OF PRIVACY: Some matters of a personal nature are nobody else's business even if they happen to be true. GENERAL DAMAGES: Awarded by juries on the basis of their opinion of fair compensation for a wrongful act. PUNITIVE DAMAGES: Extra compensation awarded an injured party in order to set an example for others. Usually based upon the ability to pay. SPECIAL DAMAGES: These are damages to the plaintiff that are extraordinary and not the usual consequences of the wrongful act. In slander (but not libel), these must be specified by the plaintiff in the pleadings or they cannot be recovered. REQUIREMENTS OF ACTIONABLE DEFAMATION 1. ENTITY. A specific entity or "entity under the law" such as a person, organization, or class of persons recognized by law must be involved. For example, the statement "all medical doctors are quacks" would not be actionable because it does not involve an entity that is specific enough, since no single organization can purport to represent "all medical doctors", and the statement is too general to be applied to any individual medical doctor. 2. THIRD PARTY. Someone other than the entity that is the object of the communication must hear or see it. With SLANDER, the witness must be capable of understanding the communication; LIBEL doesn't require a direct third party witness, because communications in a permanent form have a life of their own and may be seen by others in the future. 3. DEFAMATION. It is defamatory to accuse someone of impotence, unchastity, having a loathsome disease, criminal acts, or incompetence in his/her trade, business, office, or profession. 4. INTENT. Defamation need not be intentional. For example, if a personal defamatory letter not marked "private" or "personal" is opened and read by a secretary, the secretary constitutes a third party. 5. MISTAKE. If a third party reads a private communication by mistake, the defendant cannot be held responsible if it was not caused by him/her (e.g., letter opened by mistake). However, if the defendant caused the reading, even by mistake (e.g., a secretary regularly opens and reads any mail not marked "personal" or "private", he/she is deemed to be responsible. DEFENSES AGAINST DEFAMATION TRUTH. In a civil action for slander or libel, it is always a complete defense that the defamatory charge IS TRUE. It is immaterial whether or not the defendant believed it was true at the time he/she made it or what the motive was for making it. In criminal cases, the defendant must have believed the charge was untrue. The defendant has the burden of proof for the truth of the charge. REPETITION OF ANOTHER'S STATEMENT. Repetition of a defamation with sufficient exactness and citation may be used as a defense, but because great injury may accrue from the wrongful repetition of defamation, the person repeating the charge can be held liable. Therefore, potentially defamatory information should be checked out before it is repeated. FAIR COMMENT OF CRITICISM. Anything placed before the public, such as a book or play, and the conduct of public persons, may be commented upon and criticized provided such comment is fair, without malice, and not an invasion of privacy. LEAVE AND LICENSE. If the plaintiff consented to the publication of a defamation, he/she cannot afterwards make a complaint of it. ABSOLUTE PRIVILEGE. Under certain circumstances, specified individuals are exempted from charges of defamation. Included are the President of the United States, federal and state legislators acting in their official capacities, judges, juries, counselors, witnesses in the course of judicial proceedings*, and reports by naval and military officers in the course of their legal duty. *Beware of the fact that privilege does not follow you from the hearing room. It is not unusual for the press to quote you after a hearing. If your statement is made outside of the hearing room, you are not protected by privilege. QUALIFIED PRIVILEGE. The rule as to privileged reports is based upon fairness and motivation. The report should be a substantially accurate account of the proceedings as a whole, not taken out of context. Government and scientific documents are often the source of privileged reports. GENERAL GUIDELINES ON COMBATTING HEALTH FRAUD, QUACKERY, AND MISINFORMATION We believe that activists who understand the law and use common sense have little to fear. It is not libelous to attack an idea, list the characteristic signs of quackery, or say that something is "questionable". One cannot libel a large group of individuals or an entire industry. One can libel an individual or organization by name-calling. It is legal to mention adverse facts about someone who places himself in the public spotlight by claiming to have expert knowledge. Avoid statements about motivation (such as "he's in it only for the money"), because they may be impossible to prove. During sensitive interviews, it is wise to have your own tape recorder operating. AVOID DEFAMATION. This may be done by not aiming remarks at a specific entity. Don't single out specific individuals, organizations, products, companies, and the like. Be more general. Concentrate on generic formulas, types of practitioners, methods of practice, and so forth. If asked to label someone a "quack" or something "quackery", be sure you offer a clear definition of what you mean, and preface your remarks with "in my opinion" or an equivalent statement. YOUR OPINION IS ALWAYS TRUTH. If you preface your remarks with a clear statement that what you say is your opinion, it automatically becomes a true statement. However, even though "In my opinion, John Doe is a dangerous quack" is a true statement of your opinion, it is not necessarily a true description of John Doe. Such a statement would be ill-advised, because it is inflammatory and apt to invite a lawsuit by John Doe that could cost you time and money to defend. BE SMART. It is not a good idea to call an individual a quack, unless you are willing to defend it in court. It is better to call a practice "quackery" without directing charges at individuals. BE INFORMED. Don't go off half-cocked. Be sure that you know a great deal about the topic you are dealing with. Assume nothing. Be sure! BE AWARE. When criticizing or accusing an entity, be aware of the nature of your charge. Know whether you are making accusations of criminal behavior, incompetence, or something else that will injure him/her in business, trade, or profession. Be sure your evidence will support such a charge. USE THE RIGHT TERMS. When describing the actions of people, be accurate. Get a clear picture of what they are doing, and describe it in proper terms. The rule is to use standard terminology from recognized, authoritative sources. See the glossary provided at the end of this pamphlet. DESCRIBE AS THOROUGHLY AND ACCURATELY AS POSSIBLE. The best rule on being informed is to concentrate primarily upon obtaining a clear, accurate, and thorough description of the product, service, book, practitioner(s), company, organization, theory, belief, or whatever it is you are dealing with. Get it in writing, and be sure you understand it in detail. If you are unclear on a point, obtain clarification. POINT OUT ADVERSE TRUTHS. It is not necessary or advisable to exaggerate or embellish the facts. It is only necessary to point out the adverse truths about the entity in question. If a quack's doctorate is from an unaccredited school or "degree mill", simply point it out. If he/she has a criminal record, cite it accurately. If a claim is outrageous, merely provide accurate counter information and sometimes some aid in logic or insight. UNDERSTATEMENT IS BETTER. It is tempting to attack the problems of health fraud, quackery, and misinformation as strongly (in an emotional sense) as possible at each opportunity. Strident approaches to public issues can attract attention, but often fail in the long run (i.e. the "Chicken Little" phenomenon). The war against these social evils is on-going. Credibility and persistence are our most-effective weapons. Objective, unemotional, well-informed understatement offered with tolerance and understanding (quacks are often victims themselves who unwittingly victimize others in their misguided attempts to help) - - with some humor when appropriate -- is a better way. DO NOT ASSUME THAT QUACKS ACT IN BAD FAITH. While it is true that some quacks are greedy con men, others may be insane, incompetent, or zealots who sincerely believe in their nostrums and are motivated by altruism. In the final analysis, from the consumer's point of view, motivation doesn't matter. FOCUS ON IMPORTANT ISSUES. The important issues are (1) is the health-related product or service accurately labeled or described, (2) truthfully advertised, (3) safe to use as recommended, or (4) valid (if diagnostic) or effective (if a preventative, medication, or treatment) for the condition for which it is offered? IDENTIFY THE HARM BEING DONE. Opponents of health fraud, quackery, and misinformation must compete with such crimes as robbery, child abuse, maiming, and murder as dangers in the public mind. In reality, these problems may lead to any of these harmful outcomes. However, when pointing out such possibilities to the press, legislators, or an audience, have specific examples in mind that will hold up to close scrutiny and critical analysis as reasonable and valid. Categories in which harm may fall include (1) Economic harm. (2) Direct harm by commission (i.e., poisoning, maiming, malnutrition, injury). (3) Indirect harm by omission (i.e., avoiding or delaying proper care, which allows a disease to progress causing unnecessary damage or death). (4) Psychological harm (e.g., causing mental anguish by leading someone to wrongly believe he has cancer, creating false hope that will be dashed, creating unwarranted fear of drugs or surgery, creating distrust of scientifically-based health care, etc.). (5) Harm to society (e.g., widespread misbeliefs can lead to misguided policy, undermine sound consumer protection laws, waste resources, deflect research appropriation from sound pursuits, etc.). BE FIRM. Once you have your evidence in hand, know what you are doing and have made your charge, stick to your guns. Don't allow threats of lawsuits and lawsuits filed against you to cause panic. Most threats do not materialize, and even lawsuits that have been filed are not pursued when it becomes clear that you know what you are doing and have a good case for your statements. GLOSSARY FRAUD. The word "fraud" is legally defined as "a generic term embracing all multifarious means that human ingenuity can devise, and that are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth" (1). A shorter definition is "intentional perversion of truth in order to induce another to part with something of value or surrender a legal right" (2). The quality of deliberate intent to deceive is the key feature in fraud. If intent to deceive cannot be proved, avoid this term. QUACK/QUACKERY. An example of how confused attempts to define quackery have been can be found in an FDA Consumer Memo, which states "Broadly speaking, quackery is misinformation about health" (5). Certainly, quackery involves the use or exploitation of misinformation about health, but the statement makes no sense as presented. The public understands this term to apply to health promotions they should avoid. However, it is a difficult term for activists to employ, because of its loaded implication of fraud. A major medical dictionary defines a quack as "one who fraudulently misrepresents his ability and experience in the diagnosis and treatment of disease, or the effects to be achieved by the treatment he offers" (3). The word's origin simply was "...a clipped form of KWAKSALVER, which is one who `quacks' like a duck about his salves and remedies" (4), which does not require that fraud be involved. In some states, a quack is legally defined as "someone who promotes medicine without a license", meaning that neither fraud nor promoting worthless remedies is essential. Congress has provided a functional definition of a quack in the 1984 hearings chaired by Claude Pepper. In Pepper's report (10), a quack was defined as "...anyone who promotes medical schemes or remedies known to be false, or that are unproven, for a profit". ("...for a profit" is understood to refer to any type of money- making scheme such as donations, loans, or alleged non-profit organizations; it was meant to distinguish self-applied folk medicine from commercial promotions.) This definition is probably the best to use presently, because it doesn't state or imply deliberate fraudulent intent, and is from a recognized authoritative source. In any case, it is important that one make clear what definition is being used when applying the term "quack". MISINFORMATION. Misinformation is what it is. Misinformation differs from ignorance (i.e., not knowing), and, if deeply-held, may extend to misbelief. There are no implications of fraud or quackery. Misinformation mainly needs identification and correction. DESCRIBING BEHAVIOR ASSOCIATED WITH HEALTH FRAUD, QUACKERY, AND MISINFORMATION Many terms are available to describe behavior offensive to people in consumer protection. Select and use only those terms that accurately apply. Use standard or recognized reference sources for definitions you choose. Following are some useful examples: CHARLATAN: A pretender to medical knowledge, faker, or fraud (2). CRANK: An eccentric person (2) (who believes his offbeat theories). CULT: A system for the cure of disease, based upon dogma set forth by it promulgator (2). DEGREE MILL: An organization that awards degrees without requiring its students to meet educational standards for such degrees established and traditionally followed by reputable institutions (6). FOOD FADDISM: The is no standard definition for this term. It is usually used as a generic term to describe nutritional nonsense of all kinds. Food faddists are characterized by their exaggerated belief in the value of nutrition in health and disease. FRINGE PRACTITIONER: One with marginal or extremist views (2). HUCKSTER: One who acts primarily from mercenary motives (7); to promote by showmanship (2,7). MAVERICK: An independent individual who refuses to conform to his group (2). MOUNTEBANK: One who sells medicines from a platform (2). PSEUDOSCIENCE: A system of theories, assumptions, and methods erroneously regarded as scientific (2,7). SALESMAN: A relatively benign term, which can be applied to promoters of health products & services for the purposes of warning consumers. REFERENCES AND RESOURCES 1. "Black's Legal Dictionary". 2. "Webster's Seventh New Collegiate Dictionary". Springfield, MA: G. & C. Merriam Company, 1972. 3. "Dorland's Illustrated Medical Dictionary, 25th Edition". Philadelphia: W. B. Saunders Co., 1974. 4. Funk, W., "Word Origins". New York: Bell Publishing Co., 1978. 5. "Quackery: Paying for Miracles that Never Happen". HEW Publication No. (FDA) 79-1017, July, 1979. 6. U.S. Office of Education, "Pollution in Higher Educational Efforts of the U.S. Office of Education in Relation to Degree Mills", March, 1974. 7. "Webster's Third New International Dictionary". Chicago: Encyclopedia Britannica, Inc., 1976. 8. "American Law and Procedure, Volume Two: Torts, Domestic Relations, and Persons". Chicago: LaSalle Extension University, 1962. 9. Barretts, Herbert V., "Vitamins and `Health Foods': The Great American Hustle", chapter "Nutrition and the Media", Philadelphia: Stickley, 1982. 10. Pepper, C., "Quackery: A $10 Billion Scandal", report by the chairman of the Subcommittee on Health and Long-Term Care of the Select Committee on Aging, House of Representatives, 98th Congress, Second Session, May 31, 1984. Committee publication no. 98-435. NOTE: "Avoiding Legal Problems" is intended for educational purposes only. It is not intended as legal advice. Approved by the NCAHF Board of Directors on June 25, 1986. ---------------------------------------------------------- For more information, write to The National Council against Health Fraud, Inc. Post Office Box 1276 Loma Linda, CA 92354 -end-


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