Thursday, May 24, 2012

False Advertising - a New Low!!

"FTC V. POM You be the judge" is the headline in an advertisement on page A13 in today's New York Times.  The ad goes on to "inform" the consumer that an "FTC judge agreed that POM Wonderful 100% Pomegranate Juice and POMx do provide significant health benefits.  Here is what the judge said in his own words."

The ad goes on to quote out-of-context statements contained in the decision of the administrative judge in a suit brought by the Federal Trade Commission accusing the POM Wonderful Co. of false and misleading advertising vis-a-vis its claims to significantly affect matters such as prostate health and erectile dysfunction.

The ad quotes the judge's ruling:

"Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer." (page 282.)

Here is the quote in context from page 282 of the decision:


As discussed above, the expert testimony regarding the studies relied upon by Respondents is conflicting. The greater weight of the persuasive expert testimony demonstrates the following: The basic research, the Pantuck Study, and the Carducci Study, relied on by Respondents, support the conclusion that pomegranate juice has a beneficial effect on prostate health. F. 1142. Competent and reliable scientific evidence supports the conclusion that the consumption of pomegranate juice and pomegranate extract supports prostate health, including by prolonging PSA doubling time in men with rising PSA after primary treatment for prostate cancer. F. 1142. However, the greater weight of the persuasive expert testimony shows that the evidence relied upon by Respondents is not adequate to substantiate claims that the POM Products treat, prevent, or reduce the risk of prostate cancer or that they are clinically proven to do so. F. 1143. Indeed, the authors of the Pantuck Study and the Carducci Study each testified that their study did not conclude that POM Juice treats, prevents, or reduces the risk of prostate cancer. F. 1055, 1056, 1084, 1085. And, as Respondents’ expert conceded, no clinical studies, research and/or trials show definitively that the POM Products treat, prevent, or reduce the risk of prostate cancer. F. 1135-1138.

Having fully considered and weighed all the evidence and the conflicting expert testimony on Respondents’ basic research and clinical trials, the greater weight of the persuasive expert testimony demonstrates that there is insufficient competent and reliable scientific evidence to substantiate a claim that the POM Products treat, prevent, or reduce the risk of prostate cancer or that clinical studies, research, and/or trials prove that the POM products treat, prevent, or reduce the risk of prostate cancer. F. 1143. Accordingly, Complaint Counsel has met its burden of proving that Respondents’ substantiation was inadequate to make the implied prostate cancer claims found to have been made in this case, and that, therefore, such claims were false or misleading.

The ad concludes with the following cited "claim" from the judge's decision:

"Competent and reliable scientific evidence shows that pomegranate juice provides a beneft to promoting erectile health and erectile function." (page 188)

In fact, page 188 cites various studies that are being examined by the court, including the one above and the one I cite below, also on page 188.

There is insufficient competent and reliable scientific evidence to show that pomegranate juice treats erectile dysfunction in a clinical sense or has been clinically proven to do so. (Burnett Tr. 2285, 2300; Goldstein, Tr. 2611; CX1289 (Melman Expert Report at 0018). See also Burnett, Tr. 2261-64).

And here is part of the court's final conclusion:

The weight of the persuasive expert testimony demonstrates that there was insufficient competent and reliable scientific evidence to support the implied claims, made in advertisements disseminated by Respondents, that the POM Products treat, prevent or reduce the risk of heart disease, prostate cancer, or erectile dysfunction, or are clinically proven to do so. Therefore, such claims were false or misleading within the meaning of Section 12 of the FTC Act, and Complaint Counsel met its burden of proving the second element of a false advertising claim.

Once again - If it seems too easy to be true - best check it out!!





Monday, May 21, 2012

Amend Our Constitution

How should our Constitution be regarded.  Aside from its organizational function, was it primarily intended to serve as a set of principles or as a set of laws.  A set of principles is forever open to interpretation and re-interpretation.  A law establishes a "rule" which, if not adhered to, results in some form of sanction.  Granting a person the right to privacy is a principle, not a law.  It does not define privacy or private acts.  Barring the sale of alcoholic beverages is a law.   Non-adherence to this law results in punishment.

Principles may be regarded differently by different people.  Since justices of the Supreme Court are people, it follows that they, too, will have a variance in opinions.  It is expected and understood.  Judgements are easier if there is legal clarity.  Basing opinions on undefined general principles will always be open to criticism.  Constitutional clarity can be achieved with constitutional amending.

Our Constitution can be amended - very difficult, but possible.  There have been only 27 amendments since 1787 (225 years), and only 17 of them since the Bill of Rights, and only 12 since those immediately following the Civil War!  It has been 20 years since the most recent amendment, the 27th, was ratified.  None of the more recent amendments deal with anything substantial, unless you consider lowering the voting age to 18, or restricting the method of determining congressional salaries as such.

We often criticize the decisions of the Supreme Court in its constitutional rulings and accuse it of legislative rather than judicial activity - of being an "activist" Court.  But it is seen as an activist Court only when it has no legislation to direct it.  There is nothing in the Constitution about abortion or about gay marriage.  The Constitution gives absolutely no guidance on such "social" or "moral" issues.  To use this document as a basis for such social decision-making is truly a stretch - no matter what side of the issues one is on.

State courts have no problems in dealing with social issues.  Quite a number of states have passed amendments to their constitutions dealing with gay marriage and abortion.  Why should it be so difficult for our legislators to do the same for our federal Constitution.  So long as the Constitution does not include specific amendments addressing these social issues, resolutions and rulings may never be permanently achieved.  It is nonsensical for gay marriage to be acceptable in New York, but not in New Jersey.  It is just wrong for the federal advantages of marriage to not apply to legal same-sex marriage because it is not recognized by the federal government.

These controversies will continue to be argued on constitutional grounds though, in fact, such grounds are non-existant - and will remain so until appropriate amendments clarifying these important social matters are added.  If we have a "living Constitution," then it deserves to "live" in modern times.  It should be re-evaluated and amended on some recurrent basis.



Tuesday, May 8, 2012

Putting a Value on Human Life


The philosopher Peter Singer has cited the following syllogism:

It is wrong to kill an innocent human being.
A human fetus is an innocent human being.
Therefore it is wrong to kill a human fetus.

The conclusions of the pro-life movement in this country are based on the second portion of this argument; that  a fetus is an "innocent human being."

Singer and others do not disagree with the second premise, but with the first; that it is wrong to kill an innocent human being.  His disagreement with the conclusion, therefore, is based on the idea that it is not always wrong to kill an innocent human being.

Arguments that a fetus, at any stage of development, is not a human life will forever remain a challenge, especially as the ability of salvage a fetus of almost any age, will eventually reach reality.  If one  accepts the second premise in the above syllogism, then the only way to endorse abortion is to agree to the first premise, as does Singer.

The only way I can place a value on human life is to measure its value when related to another human life, or human lives.  It is acceptable, at least philosophically, to sacrifice the life of one innocent person  in order to save the lives of many - the old argument of who to toss out of a lifeboat, or whether or not to avoid running over a child, when avoiding the child would result in the destruction of a busload of innocent human beings.

The life of a fetus, at any stage of development, comes into question when its life can impact negatively on the life or health of its mother.  Singer bases such decisions on "preferences."  What is the preference of the mother compared to the preference of the fetus?  A "preference" he defines as something sought to "be obtained or avoided," and to have any preference at all requires the ability to suffer or feel satisfaction.  It falls to reason that a very immature fetus could not possibly express a preference, whereas a mother certainly could.  This, in Singer's philosophy, would deem the life of the mother more valuable than the life of the fetus, in the difficult situations where a choice must be made between the two.

This argument does not apply to questions of choice in multiple gestations.  What should be done if it is deemed necessary to destroy one (or more than one) fetus in order to assure the survival of the others?  Which fetus should be sacrificed if all are equally vulnerable?  How could this decision be made?  Should it be left to the physician to decide?

Talmudic scholars have assessed a mother's life as more valuable than that of her fetus.  Violence directed at a pregnant woman that results in the demise of her fetus does not carry a death penalty, but a monetary one.  The value of a fetus becomes equal of that of the mother only when one-half of the baby has been delivered.

When a decision as to who obtains a heart transplant has to be made between two individuals, both of whom have equal abilities to suffer or feel satisfaction, it is the one who is most medically needy.  If both are equally needy, it is the one who is first on the list.

Difficult decisions or choice will remain difficult decisions of choice - but there are clearly instances where they must be made.  Onerous, yes - but necessary, absolutely!