Citizen Groups Petition FTC to Adopt Guidelines for Advertising of Health Services

On August 17, 1999, two national consumer groups, the Citizens Advocacy Center and the Citizens for Health, petitioned the FTC in an 11-page document to adopt guidelines for the advertising of health services. They asked the FTC to:

• "Create a level playing field for all health care providers, neither favoring nor disfavoring alternative medicine.

• "Neither favor nor disfavor innovators, people with minority views or mavericks.

• "Facilitate consumer access to controversial information.

• "Provide clear and comprehensive 'bright lines' to health care providers.

• "Encourage competition."

The Citizens Advocacy Center, located in Washington, D.C., provides research, training, technical support and networking opportunities to thousands of public members who serve on health care regulatory boards and governing bodies as representatives of the consumer interest.
Citizens For Health, located in Boulder, Colorado, is a consumer group that has been active in national campaigns to persuade congress to pass the Dietary Supplement Health and Education Act and has co-led the campaign to "Keep Organic Organic."

In addition to seeking guidelines from the FTC for advertising of health services, the president of Citizens for Health (David Swankin,JD) and the chairman of the Citizens Advocacy Center (James Turner,JD) wrote the FTC director of consumer protection, Joan Bernstein, decrying the agency's attempts to censure information in Dr. Ted Koren's chiropractic brochures.

Their letter to the FTC states, in part:

"We believe that Dr. Koren did not violate the law and that any case brought against him is likely to fail for want of proof and for not being in the public interest. "The proposed consent order prevents valuable and substantiated information from reaching the public in favor of a constricted definition of chiropractic more rooted in ideology than in a realistic view of the literature and a reading of state laws permitting broad treatment modalities for chiropractors.

"Dr. Koren extensively footnoted his information pamphlets. The staff chose to focus on only one or two articles as not substantiating a claim, while ignoring the numerous other articles that fully provide substantiation.

"Staff (i.e., FTC staff) apparently is undertaking a novel theory that these chiropractic journal studies do not meet its standards. But staff neither articulates this position in the complaint, nor provides any FTC guidelines which would tell Dr. Koren why he may not cite such studies, nor explains how we would possibly know which studies he may cite and which he may not.

"The staff's unnamed experts appear to be hostile critics of mainstream chiropractic. A wiser approach would be reliance upon the only independent regulators, the state licensing boards.

"We are also clear that a misuse of FTC authority can have serious negative consequences for consumers. We set out our belief that this case presents that danger. Therefore, we seek a process to create a business guide as an alternative to attempting to make policy by pursuing a weak or nonexistent case."

Dr. Koren's ordeal with the FTC began in January 1995 when the agency asked him to substantiate numerous "claims" made in his chiropractic brochures. Dr. Koren sent the FTC nearly 400 references to support his publications. In 1997, an attorney for the FTC and Dr. Koren's lawyer negotiated an agreement that some of the brochure material would be rewritten, but the FTC commissioners rejected it.

The FTC issued a new complaint against Koren Publications in April 1998, focusing on four of his brochures. Dr. Koren decided to fight. "You are not safe. They could have gone after anyone," he said at the time. "I was just first on their list. The noose is around all our necks." (See "FTC Questions Chiropractor's Claims," DC, Sept. 21, 1998 or www.chiroweb.com/archives/16/20/08.html .)

And indeed, there was a general alarm in the chiropractic profession that the FTC had targeted chiropractic. Dr. Koren saw the FTC dictating what treatment benefited the chiropractic patient (back pain) and what treatments it could not talk about treating (neck pain, headaches, whiplash, asthma, fevers, ear infections, sciatica and menstrual problems).

Support for Dr. Koren from the chiropractic profession was guarded. Both national associations took a concerned but wait and see attitude. But then the ICA Executive Committee drafted a statement at their June 9, 1999 meeting that said the actions of the FTC should be opposed, and encouraged all DCs to support Dr. Tedd Koren's case. (See "ICA Revises Position on Dr. Koren vs. FTC," DC, Aug. 9, 1999, or www.chiroweb.com/archives/17/17/09.html )

Dr. Koren is clearly elated that support for his cause is coming not only from some in the chiropractic profession, but also from consumer health organizations. "Having such impressive organizations join us underscores the importance of this FTC matter," Dr. Koren said.

"This is the first time that major, powerful consumer organizations have supported guidelines to support freedom of chiropractic and all alternative health care providers," Dr. Koren added.