Wednesday, August 23, 2006

Do sellers of "medical devices" that work through the placebo effect violate the Lanham Act?

Relevant to earlier posts on Adam Dreamhealer, an IPBiz reader sent in something from the Aug. 23 Chicago Tribune which illustrates an intellectual property dimension of healers.

Placebo effect a key issue in trial over pain bracelet

By Michael Higgins, Tribune staff reporter. Staff reporter Kayce T. Ataiyero contributed to this report Published August 23, 2006

This week, however, a federal judge in Chicago could decide whether Andrew Park can keep his Q-Ray riches, or whether his company must forfeit up to $87 million in sales and permanently stop claiming that the bracelet relieves pain.

A Mayo Clinic study concluded that buyers benefited from a placebo effect, which occurs when people feel better simply because they expect a pill or therapy to help.

The idea that an advertiser could claim a product works when it does so only through a placebo effect is anathema to Federal Trade Commission officials and consumer advocates. Yet attorneys for QT Inc. argued last month in court that any relief could legitimize the claim.

The "mechanism is not an issue," argued Michael Ficaro, attorney for QT Inc. "More than three out of four people got relief from this product. And the other quarter who didn't got their money back. ... How in the world does that violate the [false advertising] act?"

When an FTC attorney said no previous court had accepted that argument about the placebo effect, Denlow replied: "Well, maybe I should be the first. ... That's never bothered me."

The placebo effect can be strong. In the Mayo study, more than 75 percent of people who used a "non-active" bracelet reported some pain relief, the same percentage that reported relief with the Q-Ray.

Just as important, experts say, is the fact that pain often increases and decreases over time. People tend to reach out for unconventional products when they are feeling their worst. When their condition naturally improves, they associate that result with the product.

[IPBiz post 1892]


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