In a previous post, I discussed the proposal by Ms. Amanda Naprawa (Naprawa, 2013) to sue the tort of misrepresentation that causes physical harm against those spreading anti-vaccine misinformation, and under which conditions can that be done.

This article examines another tactic suggested by Ms. Naprawa, regulation by the Federal Trade Commission (FTC). This tactic is at once more limited and more powerful than the tort of misrepresentation. It is more limited, since the FTC’s power of regulating false speech is limited to commercial speech, and the decision to use it depends on the FTC, with individuals’ power to promote such action extremely limited. It is more powerful since individuals do not have to bear the costs of bringing a suit and proving the falsity, since it can be done before harms actually happen, and since it is a traditional power of the FTC that has been used in similar context in the past.

Maybe the FTC could regulate anti-vaccine misrepresentations in certain areas.

Basics of FTC’s power

15 U.S.C. §52 makes it unlawful for anyone to “disseminate, or cause to be disseminated, any false advertisement,” and gives the FTC the power to enforce the provision. To cite a violation, the FTC has to show (Fed. Trade Comm’n v. Verity Intl., LTD 443 F. 3d 48, 63 (2d Cir. 2006):

The existence of “representation, omission, or practice,” Likely to mislead consumers acting reasonably under the circumstances,” “the representation, omission or practice is material.”

Health claims can be cited as misleading if the advertiser likes a reasonable basis for the claim, and scientific evidence needs to support the claim to establish a reasonable basis. Explains Naprawa, “without a reasonable basis for a claim, ads are ‘deceptive as a matter of law.’” (Naprawa, 2013, p. 508).

Since the scientific consensus does not support – and in fact disproves – many of the claims raised by anti-vaccine activists, the FTC can step in and regulate those claims. .

Challenges to FTC’s power in this context

Several leading anti-vaccine organizations are non-profits, and do not actually sell products. This is true, for example, of the National Vaccine Information Center, SaneVax, and others. The FTC cannot regulate those, and this is a substantial limit on the ability to use the FTC’s power to regulate in this context. But some promoters of anti-vaccine misinformation do also sell products based on claims that vaccines cause harm. Naprawa cites a company selling a “Vaccine Kit” sold using the claim that vaccines cause autism – a claim unsupported by science.

Similarly, Dr. Mercola, a supporter of various alternative medicine methods and an opponent of vaccines, sells a variety of supplements and also publishes articles suggesting these supplements can be better than vaccines for some diseases, like flu. When providers sell supplements as alternatives to vaccines, or sell things they claim would “detox” one from vaccine damage, and their claims go against the scientific data, it is appropriate for the FTC to regulate them (or the FDA, which ordered Mercola to stop making claims beyond the labeling of a product; but that requires more explanation, and this post is already going to be pretty long).

When an alternative practitioner sells products designed to replace vaccination (without scientific evidence behind the claim) or to remove vaccine toxins, speech promoting those products can be regulated, if inaccurate.

Not only are FTC’s powers limited to commercial speech, but the decision to use those powers is at the discretion of the FTC, and individuals have very limited ability to get the FTC to act. Administrative agencies traditionally have very, very broad discretion to set enforcement priorities, and courts rarely – if ever – interfere in a decision not to use an agency’s enforcement powers.

The reason is that courts do understand the reality in which administrative agencies operate. In today’s administrative state, agencies are often underfunded and understaffed. This means they have to set priorities: they cannot do everything. Since Congress delegated the power to enforce the act to the FTC and not to a court, and since the FTC, presumably, has the experience and expertise to know what is more urgent (or at least has more of it than a court has), a court will be very hesitant to overturn the FTC’s discretion in setting enforcement priorities.

It’s not at all clear whether the FTC will see this as a priority in any way.

Advantages to the FTC power in this context

On the other hand, using the FTC in this way does carry substantial advantages. In a tort suit, the plaintiff has to shoulder the costs of the trial. Even if the suit is brought on a contingency fee basis – i.e., rather than paying the lawyer, the plaintiff and the lawyer agree that if the case is won, the lawyer would get 30-50% of the win money – the costs of the trial should still be paid by the plaintiff – and they can be high. Here, the agency will investigate and bring the case. The costs will fall on the government and be spread to all tax payers (though any fines will also go to the government).

This is also an acknowledged, accepted power of government. There is not a lot of controversy about the ability of the FTC to regulate problematic products and misleading advertisements. In a similar context, in 2009 the FTC charged a company selling “detox foot pads” of false advertising:

The Federal Trade Commission has charged the marketers of Kinoki Foot Pads with deceptive advertising, including claims that use of the foot pads would remove toxins from the body; treat high blood pressure, depression, and a host of other medical conditions; and lead to weight loss. In its complaint, the FTC charges that all the advertising claims either are false or did not have evidence to support them when they were made. The FTC seeks to bar the defendants permanently from deceptively marketing the foot pads. The FTC also asks the court to order the defendants to provide monetary redress to consumers or otherwise give up their ill-gotten gains.

Finally, and potentially most importantly, this kind of action can be done without showing of harm–before a child is harmed or killed by the misinformation, unlike tort liability, which generally requires someone to be hurt or killed before payment can be made. An ounce of prevention is better than a pound of cure, and that is true here too. By telling the providers of commercial misinformation: “Stop it now! Got it? Good,” the FTC can help protect children.

Not in all contexts, but when anti-vaccine misinformation is disseminated in a commercial context, the FTC can step in and stop its spread. I agree with Ms. Naprawa that the FTC should make use of its power to do so, to protect children’s health. Citizens cannot force the FTC to do so, but they can ask it to, and raise its awareness to the problem – via the FTC’s complaint form, via sending letters to the FTC asking it to act, and even via filing a petition for rulemaking under §553(e) of the Administrative Procedures Act, which states that “each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule,” to ask the FTC to pass a rule declaring anti-vaccine misinformation to be misleading. If we all speak loudly, maybe the FTC will listen, and join the effort to protect children from misinformation.

Conclusion

Anti-vaccine speech is often inaccurate. Those inaccuracies can directly harm children left unprotected against preventable diseases because of these claims. The tools we have to protect people against such speech are limited, and properly so: regulating speech should be done sparingly and carefully. But we are not completely helpless: there are some tools available.

The administrative state can and should help protect public health by regulating these kinds of misleading claims.

Key citations:

Amanda Z. Naprawa, Don’t Give Your Kid That Shot!: The Public Health Threat Posed By Anti-Vaccine Speech And Why Such Speech Is Not Guaranteed Full Protection Under The First Amendment, 11 Cardozo Pub. L., Poly & Ethics J. 473 (2013).

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