Quoted message said:Subject: Re: Barrett, Baratz & NCAHF LOSES AGAIN!!!
From: "Peter Moran" [email hidden]
Date: 7/10/2003 4:31 PM Central Standard Time
Message-id: <[email hidden]>
Extract --
Quoted message said:There are two problems with appellant's argument. First, there is no
evidence
Quoted message said:that respondents failed to conduct clinical investigations on their
products.
Quoted message said:Second, even if we presume that respondents did not conduct clinical
investigations, appellant cites no federal or state law requiring that
homeopathic remedies be subjected to controlled clinical investigations.
So homeopathic remedies can be sold with no evidence that they do what is
claimed, and the unsrupulous can make millions from doing this.
It arises because even the law does not see them as "real medicine"
requiring the usual standards of safety and efficacy.
Thus arises the ridiculous situation that you can be prosecuted for false
advertising about anything else, even about most medical treatments, but
you can say what you like about a homeopathic remedy that has never been
shown to be effective for any medical condition.
And some see this as something to crow about!!
Peter Moran
c. Appellant Failed to Show a Probability of Prevailing on Its Claims
It is apparent from appellant’s pleadings and its expert affidavits that
appellant performed no tests to determine the efficacy of respondents’
products. Instead, appellant broadly asserts that (1) homeopathic remedies are,
in general, untested for efficacy and (2) most of the modern medical community
rejects homeopathic remedies. From this, appellant leaps to the conclusion that
all of respondents’ products are worthless; therefore, any advertising
claiming that respondents’ products are efficacious is false and misleading.
The generalities asserted by appellant’s experts are insufficient to survive
respondents’ motion to strike under the anti-SLAPP statute. Appellant’s
medical expert Dr. Blumenkrantz could only "assume" that respondents’
homeopathic remedies are not clinically tested; biochemist Budny questioned the
methods by which homeopathic remedies have developed over the last 200 years;
and pharmacology expert Adams stated that drug efficacy can only be measured
through clinical trials. None of the experts say anything about the efficacy of
respondents’ specific products, nor do they rebut the veracity of any
statement made by respondents.
Given the federal government’s recognition of the Homeopathic Pharmacopoeia,
appellant has to show that respondents’ remedies are promoted for uses
significantly beyond what is customary in homeopathy. Appellant made no effort
to do so. Instead, appellant lumped all of respondents’ hundreds of products
together, without making any distinctions between them. Absent evidence from
appellant, we cannot discern whether any of respondents’ products were
promoted for noncustomary uses. All we are left with is appellant’s belief
that the federal government should not recognize homeopathic remedies in the
first instance.
CONCLUSION
Appellant believes that no one should be allowed to market homeopathic
remedies. Congress has decided otherwise, and officially recognizes the
Homeopathic Pharmacopoeia. Appellant’s broad-brush approach of sweeping all
homeopathic remedies into a single bag marked "undesirable" simply does not
work in the courts, where each claimed instance of unfair advertising and
unfair business practice must be closely scrutinized. Appellant failed to
present any admissible evidence in this case that respondents are guilty of
false advertising and unfair business practices with respect to any of their
products.
DISPOSITION
The judgment is affirmed.
