Why Doesn't the FTC Attack False Chiropractic Claims?

Stephen Barrett, M.D.

It puzzles me that the U.S. Federal Trade Commission has never publicly attacked any of the false or misleading claims that are common in chiropractic advertising. In 1973, a colleague of mine and our Congressional Representative (Fred Rooney) complained about a local chiropractic newspaper ad. Gerald J. Thain, the FTC's Assistant Director for National Advertising, replied that because the distribution was only local, the FTC's jurisdiction was uncertain and its resources too limited to give the matter enforcement priority. Thain also suggested that we contact the Pennsylvania Bureau of Consumer Protection [l]. Congressman Rooney responded (in part):

I do, of course, recognize the limited impact upon "interstate commerce" which the subject advertisement . . . may have had. My concern, however, is that this and other advertising texts making grossly exaggerated claims for the value of chiropractic services are being distributed by the hundreds, perhaps thousands of newspapers nationwide. Further, I believe that investigation will disclose that stock ads are being distributed nationwide for placement in local newspapers by local chiropractors. . . . I believe you will find the problem nationwide in scope, that it probably involves a majority of the nation's newspapers and that what really is at stake in a massive deception of the public to rely upon chiropractic services for treatment of extremely serious medical or mental disorders. . . . I would appreciate it very much if you would re-think this matter in view of its potential for serious harm to the public health nationwide [2].

In 1988, after the American Chiropractic Association inserted an advertising brochure in Reader's Digest magazine, National Council Against Health Fraud president, William T. Jarvis, Ph.D., complained to the FTC that the brochure deceived by exaggerating what chiropractors can do and by asserting that chiropractic's basic (subluxation) theory is valid [3]. Jarvis's letter was accompanied by a detailed critique and other documents that I believe placed the matter in proper perspective. I am not aware of any FTC response to the letter.

FTC Advisory Opinions

Between 1984 and 1992, the FTC staff gave opinions to state legislators or regulatory agencies in five states that were trying to improve their regulation of chiropractic advertising.

Overall, the FTC letters showed little or no understanding of the chiropractic marketplace. "Free" chiropractic offerings, "discounts," and insurance co-payment waivers do not lead to lower prices in a community. They are merely bait by chiropractors who seek to enroll patients into expensive contracts for unnecessary care [9]. But all the FTC seems to have cared about was the possibility that curbing them might decrease competition.

FTC Enforcement Actions

In three cases, FTC took enforcement action related to chiropractors, but none of these involved challenges to chiropractic claims. One limited a state board's ability to restrict presumably truthful advertising, and the other two attacked anti-competitive activity.

The Koren Case

The only case I know in which the FTC challenged chiropractic claims involved Koren Publications, a Pennsylvania-based firm that sells subluxation-based pamphlets and other practice-building aids. The FTC itself made no public statement, but fund-raising appeals from company president Tedd Koren, D.C. and articles in chiropractic publications described what happened [13,14]. A report in Dynamic Chiropractic (a chiropractic newspaper) stated that (a) in January 1995, an FTC attorney sent Koren a letter expressing concern about 21 statements or "representations" made in several of his brochures; (b) in 1997, Koren signed an agreement to modify some of his brochures; (c) the FTC rejected the agreement; and (d) the original FTC attorney retired and was replaced by another attorney who proposed a broader agreement that would prohibit Koren from making any unsubstantiated claim that chiropractic:

The Dynamic Chiropractic article stated that the proposed agreement would also have prohibited any unsubstantiated representation "about the health benefits, performance, or efficacy of chiropractic, or any substantially similar treatment." [6] An account in Reason Magazine stated that the FTC commissioners wanted to require Koren to send every chiropractor who had ever bought one of his pamphlets a copy of the consent order and a letter saying, "The FTC has advised that if you disseminate advertising or promotional materials containing [false claims], you could be subject to an enforcement action." [15]

In 2001, Dynamic Chiropractic announced that the FTC had closed its investigation without taking any enforcement action. The article, apparently quoting Koren's attorneys, stated:

The theory of the FTC attorneys was that while it was true that any author could write about the dangers of vaccination, the usefulness of pediatric chiropractic, and the latest information about medical clinical trials, the fact that Dr. Koren was a doctor of chiropractic meant that his writing faced a higher standard of review than the writings of nonprofessional, medically unlicensed journalists. This, in the view of Dr. Koren's attorneys, simply couldn't be, and was not the law.

FTC lawyers told Dr. Koren and his lawyers that the only safe information a chiropractor could give under their theory was on low back pain, and that writing about the dangers of vaccination "terrorized" American families. Dr. Koren's lawyers stated that this approach placed unsupportable limits on the rights of health professionals to write and speak [16].

Why did the FTC drop its case against Koren? It is not unusual for the FTC to close cases when the company agrees to change what it is doing. Koren did change some of the things to which the FTC reportedly objected. There might also have been concern that the Koren's publications were protected by the First Amendment. Even if that was the reason, the First Amendment would not protect chiropractors who are advertising to solicit patients.

Jurisdiction Exists

The Federal Trade Commission Act prohibits unfair or deceptive advertising of products or services in any medium [17]. To fall within federal jurisdiction, the advertisement must involve interstate commerce. The courts have repeatedly found health-care businesses to be subject to regulation as interstate commerce. The U.S. Supreme Court has ruled that the constitutional definition of interstate commerce is very broad: anything that moves between the states, or any business that uses raw materials that come from out of state are considered interstate commerce. Although the delivery of health-care services to individual patients is a local activity, everything that the practitioners use, most equipment and office supplies, comes from other states, and in many practices, patients cross state lines to get to practitioner's office. Information that crosses state lines also falls within the definition of interstate commerce.

Ads That Merit Major Regulatory Attention

The following claims deserve major regulatory attention because they are widespread, false, and potentially dangerous:

The FTC can ask for substantiation, issue warning letters, publish educational material, and/or file formal complaints against violators. Internet advertising claims provide an obvious target. If you see misleading chiropractic claims on a chiropractic Web site, please report them through the FTC Complaint Assistant.

References

  1. Thain GJ. Letter to U.S. Representative Fred B. Rooney, Oct 25, 1973.
  2. Rooney FB. Letter to Gerald J. Thain, Nov 1, 1973.
  3. Consent order. In the matter of the Texas Board of Chiropractic Examiners. Docket C-3379, April 21, 1992.
  4. Hilder ER. Letter to Colin M. Haynie, D.C. Jan 29, 1984.
  5. Mosley J. Letter to David A. Garcia, Jan 7, 1987. Jan 7, 1987.
  6. Zweibel GJ. Letter to Dorothy Hodgson. Dec 7, 1987.
  7. Wise MO. Letter to George L. Schroeder. Feb 16, 1992.
  8. Baker CS. Letter to Kay E. Gunter. Dec 11, 1992.
  9. Barrett S. Don't pay or contract in advance for chiropractic visits at a "discount" price. Chirobase, March 2, 2016.
  10. Consent order. In the matter of the Texas Board of Chiropractic Examiners. April 21, 1992.
  11. Wisconsin Chiropractic Association and its executive director agree to settle FTC charges of price-fixing: Related settlement with two La Crosse chiropractors resolving allegations of price-fixing and organizing boycott of local managed care plan. FTC news release, March 7, 2000.
  12. FTC challenges illegal boycott of health plan by Connecticut chiropractors: Chiropractors must modify behavior to protect competition. FTC news release, March 5, 2008.
  13. FTC questions Koren's claims. Is Koren Publications just the beginning? Dynamic Chiropractic, Sept 21, 1998, pp 1,17,42,49.
  14. FTC fight: The muzzling and gagging of chiropractic. Chiropractic Wellness: The Practice Building Journal from Koren Publications. Volume 1, 1998-1999, back cover. Distributed October 1998.
  15. Doherty B. Masters of manipulation. Reason, March 1998.
  16. Feds drop Dr. Koren's case: First amendment rights of health care professionals were at stake. Dynamic Chiropractic, Aug 2001.
  17. Federal Trade Commission Act, incorporating U.S. SAFE WEB Act amendments of 2006. FTC Web site, Dec 17, 2013.

This article was revised on June 1, 2017.

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