One of the poet Ezra Pound's favorite Confucian sayings holds that the first act of good government is to "call things by their right names." Such precision is important not only to poets but to lawyers, regulators, and the citizens regulators regulate--all of us, in other words. Unfortunately, it's sometimes hard to know what the proper name for something is.
Ask Tedd Koren, a chiropractor from Pennsylvania. For the past decade, Koren has written, published, and sold brochures describing what he believes about the wonders of his chosen profession. He sells the pamphlets mostly to other chiropractors, who usually leave them in waiting rooms to be picked up by patients.
Koren calls the brochures "patient education literature." The Federal Trade Commission calls them advertising. And that disagreement is causing Koren a lot of grief. The FTC says some of the claims in the pamphlets are misleading, and if Koren doesn't allow the commission to set itself up as his ad hoc editorial and scientific advisory board, he could be in big trouble.
Definitions often come from positions of power. When the FTC says your speech is advertising, unless you are very wealthy and very brave, you must agree and accept the consequences that follow from that definition. For Koren, one of those consequences is that the claims in his brochures have to meet the FTC's protean standard of "competent and reliable scientific evidence," which usually includes double-blind studies. If the FTC decides that Koren's evidence is not up to snuff, it can impose ruinous fines: up to $10,000 per violation, with each copy of a pamphlet counted as a violation.
Most people think of chiropractic as, at best, something good for back pains and, at worst, pure quackery. The profession has had a long ride to public acceptance since its beginnings in 1895, when Daniel D. Palmer allegedly cured a man's deafness by adjusting a "subluxation" in his back. Subluxations, which most M.D.s say are figments of the chiropractic imagination, are misalignments in the vertebrae. The chiropractor, mostly using only his hands, realigns them.
There are about 55,000 licensed chiropractors in the United States, and they saw 21 million patients in 1996. Like any profession, chiropractic has its share of disgruntled clients: The major chiropractic malpractice insurance company made payments in 1,402 cases from 1991 to 1995, with back disk damage from adjustments being the most common complaint. But chiropractors clearly have plenty of satisfied customers.
This leads to another definitional fight: the difference between a satisfied customer and a cured patient. As Koren describes it, chiropractic rejects standard medical science's mechanistic view of the body, stressing instead a holistic "vitalism" that has much in common with other nonmedical healing arts, such as acupuncture and homeopathy.
Those two different views of healing don't get along well together. Though chiropractic is now a licensed profession in all 50 states, the American Medical Association condemned it as quackery for decades. In 1966 the AMA declared, "It is the position of the medical profession that chiropractic is an unscientific cult whose practitioners...constitute a threat to health care in the United States."
The AMA relaxed its assault on the profession after it was told to desist in 1987 as the result of an antitrust lawsuit filed a decade before by four chiropractors. U.S. District Judge Susan Getzendanner said the AMA had engaged in "lawlessness" and "systematic, long-term wrongdoing" in its campaign against chiropractic. She ordered the AMA to publish her decision in The Journal of the American Medical Association. The AMA settled the case on terms that have not been officially made public, although one source involved in the case claims the AMA forked over "millions" to chiropractic colleges.
The government, then, has already weighed in on one side of the debate between chiropractic vs. standard medicine by dictating what the AMA can and cannot say about chiropractic--in the name of antitrust. Now with the FTC's investigation of Koren, it is weighing in on the other side, in the name of consumer protection. Leaving both sides free to fight it out in the realm of public and scientific debate seems never to be an option.
Koren thinks chiropractic is about more than back pain. This issue splits the profession, with some chiropractors sticking close to the "chiropractic is good for relief of lower back pain" line and some entertaining the notion that it can do more. To a vitalist, spinal manipulation can have many effects on the body, since all nerves run into the spine. Koren is evangelical about his views, and to people with a nose for quackery his brochures would likely fail a smell test. He believes the chiropractic system of adjusting subluxations can have positive effects on things ranging from asthma to premenstrual syndrome to digestion to the flu--all subjects of his pamphlets.
Koren stresses that he is not in the business of curing disease, and his brochures often make that point. He says it's wrong to make double-blind clinical trials the ultimate test, whether for chiropractic or for standard medicine. "All clinical trials can give you is averages," he says. Every human being is different and can be expected to react differently to treatments. But when Koren finds articles in scientific journals that suggest spinal manipulations can help relieve ailments other than back pain, he wants to be able to say so.
The FTC says no. It insists, for example, that Koren must not say there is "proof" for certain claims, even if Koren never used that word. The FTC says, though, that by citing specific journal articles Koren was implying something misleading, even if he didn't directly say it. One pamphlet simply cited a study published in The Journal of Chiropractic Research that claimed to find "increased resistance to the common childhood diseases" in a group of 63 unvaccinated children treated by chiropractors. But according to the FTC, the pamphlet said "a study...proves that chiropractic administered to children increases their resistance to common childhood diseases."
Koren revised and reprinted many of his pamphlets in response to a suggested FTC consent order, presented to him by staff attorney Sidney Steinitz in May 1997. Then in September the full commission came back and said it wanted a new order. One of its provisions would have required that Koren send every chiropractor who had ever bought one of his pamphlets a copy of the consent order and a letter saying, "The FTC has advised that if you disseminate advertising or promotional materials containing [false claims], you could be subject to an enforcement action."
"That would be like sending a letter saying I'm out of business," Koren says. His lawyer managed to get the FTC to drop that element of the proposed order. But if Koren agrees to the current order, for the next 20 years the FTC could decide at any time to fine him because, in its view, his pamphlets imply something lacking "competent and reliable scientific evidence."
In seeking to censor Koren, the FTC is asserting that his pamphlets amount to "commercial speech." The Supreme Court has repeatedly said that such speech--defined in one case as communication that does "no more than propose a commercial transaction"--is not fully protected by the First Amendment. But as federal appeals court judge Alex Kozinski and attorney Stuart Banner pointed out in a 1990 Virginia Law Review article, the whole notion that "commercial speech" can be clearly distinguished from other kinds of speech was created out of whole cloth in the 1942 case Valentine v. Chrestensen. Kozinski and Banner argue convincingly that the standard distinctions between "pure" and "commercial" speech --profit motive, objectivity, durability--don't hold up to close analysis. They warn that the commercial speech doctrine "gives government a powerful weapon to suppress speech by classifying it as merely commercial."
Koren's pamphlets, which clearly do more than "propose a commercial transaction," illustrate that point. Dr. William Jarvis, president of the National Council Against Health Fraud and an enemy of chiropractic for anything but back pain, acknowledges that conflicts between chiropractic and a standard medical/regulatory mindset hinge on differences that are "highly philosophical, metaphysical." Chiropractors have a different view of health, one that presumably appeals to their clients (or at least to those who are open to the possibility that spinal manipulation is good for more than back pain). Koren's pamphlets, even if they don't rigorously prove their case, are part of a scientific debate over the nature of healing. Under commercial speech doctrine, is anything a doctor says that can be linked to the prospect of buying a service from him thus open to lesser constitutional protection?
Thus, a strong case could be made that Koren's literature is not commercial speech. Even if the FTC's judgment on that point withstood a legal challenge, the commission's censorship might still be overturned, given the Supreme Court's recent tendency to closely scrutinize restrictions on commercial speech. But we will probably never find out. Koren can't afford the enormous cost of grappling with the FTC.
When a federal regulatory agency presents you with a consent order, no matter how unhappy you might be with the proposed settlement, the only way to ensure your business can live is to give in. If you choose to fight, you go before an administrative law judge, and if you are unhappy with his decision your first appeal goes to the agency itself. Your court battle could drag on for years and would likely cost hundreds of thousands of dollars. Offering a consent order generally is a quick and easy way for the government to get what it wants. Then, the legal issue is no longer whether you broke the law but whether you violated the consent order. Microsoft has recently learned that lesson.
Washington lawyer Jonathan Emord is engaged in a legal battle with the Food and Drug Administration over an issue similar to the one raised by Koren's case: whether manufacturers of nutritional supplements can use their labels to cite scientific articles indicating a product's potential for reducing the risk of disease. Because the FTC's reach over commerce is much broader than the FDA's, Emord considers it a more formidable opponent. "The FDA is in some ways a paper tiger," he says, "but the FTC is a dragon with big teeth and a huge intestinal tract. It can eat all day and night. And it does."