January 3, 2008, 5:08 pm
Law Blog Opinion Of the Day: The Q-Ray Ionized Bracelet
Posted by Peter Lattman
Thanks to the How Appealing blog, we are often directed to the scrumptious opinions of Seventh Circuit judge Frank Easterbrook. Today, Judge Easterbrook handed down this gem today. Read it in full. It’s fun. In short, the Seventh Circuit affirmed a trial-court ruling in favor of the FTC, which had brought suit against the makers of the Q-Ray Ionized Bracelet.
The defendants were ordered to disgorge more than $16 million in profits from selling the product, which, as Judge Easterbrook pointed out in his opening sentence, Wired recently named one of its top 10 Snake-Oil Gadgets. His second sentence: “The Federal Trade Commission has an even less honorable title for the bracelet’s promotional campaign: fraud.”
A call to a Q-Ray spokesman was not immediately returned.
Other terrific words he uses to describe the Q-Ray Ionized Bracelet, which was promoted as a miraculous cure for chronic pain: “poppycock”; “techno-babble”; and “blather.” He writes: “Defendants might as well have said: ”˜Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.’”
He spends much of the opinion addressing the Q-Ray company’s defense that the Q-Ray Ionized Bracelet is legit because it exhibits the placebo effect. “Like a sugar pill,” Easterbrook writes, “it alleviates symptoms even though there is no apparent medical reason.” Poppycock, he says. “Since the placebo effect can be obtained from sugar pills, charging $200 for a device that is represented as a miracle cure but works no better than a dummy pill is a form of fraud.”
He ends with an opera reference:
Deceit such as the tall tales that defendants told about the Q-Ray Ionized Bracelet will lead some consumers to avoid treatments that cost less and do more; the lies will lead others to pay too much for pain relief or otherwise interfere with the matching of remedies to medical conditions. That’s why the placebo effect cannot justify fraud in promoting a product. Doctor Dulcamara was a charlatan who harmed most of his customers even though Nemorino gets the girl at the end of Donizetti’s L’elisir d’amore.