Academic journal article Contemporary Readings in Law and Social Justice

Tests of Deceptive Advertising Used by the Federal Trade Commission with an Application to Alternative Medicine

Academic journal article Contemporary Readings in Law and Social Justice

Tests of Deceptive Advertising Used by the Federal Trade Commission with an Application to Alternative Medicine

Article excerpt

ABSTRACT.

We outline the tests used by the Federal Trade Commission (FTC) to determine whether advertising is unfair or deceptive. Our focus is on how the FTC views non-traditional health-related products and treatments. To help illustrate the application of the FTC advertising tests, we show how they can be used to assess claims made by some Community Acupuncture clinics that patients treated in a group setting gain treatment benefits from group energy ("communal qi").

Keywords: alternative medicine, community acupuncture, deceptive advertising, Federal Trade Commission

1. Introduction

The Federal Trade Commission (FTC) is an independent agency charged with protecting consumers from unfair competition, including acts or practices that are unfair or deceptive.1 The broad scope of the Federal Trade Commission Act enables the FTC to address deceptive or unfair acts or practices in all types of communications about any product meant to affect consumers' behavior or decisions about that product.2 The FTC has not established a definition of "advertising" or "products." Rather the agency has challenged misrepresentarions in communications about all types of products to consumers made through all types of mediums, including print and broadcast ads, infomercials, catalogs,3 and the internet.4 Pursuant to this authority, the FTC has challenged deceptive advertising5 and false advertising meant to induce consumers to purchase food, drugs, medical devices, or cosmetics.6

One goal of this paper is to illustrate the application of the FTC tests for deceptive advertising. We do this by looking at particular claims made by some Community Acupuncture clinics that acupuncture in a group setting enhances treatment though "communal qi" or "community qi" (energy that is generated multiple patients being treated at once). The authority of the FTC encompasses the ability to regulate any unfair or deceptive advertisements made by practitioners of alternative medicine, including those who practice acupuncture.

Before progressing further, we need to provide some background information about acupuncture and the notion of qi. The concept of qi has its origins in Traditional Chinese Medicine ("TCM") and is central to the philosophy, teaching, and practice of acupuncture. Qi is life energy that is believed to flow within the body through interconnected meridians. Acupoints located along these meridians are the focus of acupuncture treatment. Acupoints are where needles are inserted with the intention of affecting the flow of qi throughout the body in an effort to harmonize the body's energy state.

Today, Community Acupuncture clinics offer treatment in a group setting (i.e., one or more acupuncturists treat multiple patients in the same room at the same time). Group treatment is intended to make acupuncture more accessible to those on lower incomes (hence Community Acupuncture is also known as "working class acupuncture"), with patients being offered treatment on a sliding scale/"pay what you feel like" basis.

One claim made by some clinics that practice Community Acupuncture is that patients will experience communal qi or community qi that enhances treatment effectiveness. In essence, these practitioners are claiming that there are benefits to being treated in a group setting that arise from energy that is generated by the group as a whole, and that this, in turn, positively affects treatment outcomes.7

While acupuncture has been shown to be effective for treating a wide range of conditions and is a prominent form of alternative medicine, the concept of communal qi does not appear to have any documented clinical basis at this time. Accordingly, we will discuss the legal implications of making claims regarding the benefits of communal qi and provide thoughts on clinical research considerations for determining whether or not communal qi does in fact exist.

2. Advertising Law and Health-related Claims

Group acupuncture practitioners face significant legal advertising hurdles if they claim that group acupuncture gives rise to a communal qi that enhances treatment effectiveness. …

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