Categories
Bad science Homeopathy Medicine Pseudoscience Quackery

Boiron, oscillococcinum and homeopathy: Why courts do not decide science

Oscillococcinum, a homeopathic remedy sold by Boiron, consists of a gruel of duck liver and heart diluted away to nonexistence. Nevertheless, recently a California court recently affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Boiron Inc. and Boiron USA. This is why laws, courts, and juries do not decide science. Unfortunately, they do decide science policy.

Let me just start by saying that. In fact, I’ll repeat it. Science is not decided by laws, courts, judges, or juries. The accuracy of this statement should be so incredibly obvious that it shouldn’t have to be stated, much less repeated over and over and over again. That being said, all too often it’s impossible to avoid having legislators legislate and courts rule on issues involving science and medicine. Sometimes it’s even desirable to try. The risk in doing so, however, is that the result will be a travesty of a verdict, such as the recent jury award of $289 million to a man who claimed that glyphosate caused his cancer when in fact the evidence is overwhelming that glyphosate is not associated with cancer, the erroneous conclusions of the World Health Organization’s International Agency for Research on Cancer’s (IARC) notwithstanding. Other examples abound, such as the class action lawsuits against Dow Corning in the 1990s claiming that silicone breast implants cause a variety of autoimmune and connective tissue diseases when they do not. Even the Vaccine Court, which usually gets the science right, screws up from time to time, such as when it ruled for a complainant who claimed that vaccines resulted in their child’s death from sudden infant death syndrome (SIDS). Then there’s this ruling favoring Boiron and its homeopathic flu remedy Oscillococcinum that I learned about from Jonathan Jarry a couple of days ago:

Before I discuss the ruling, let’s recap just what homeopathy and Boiron’s homeopathic flu remedy Oscillococcinum actually are. (Apologies to longtime readers who already know.) I frequently refer to homeopathy as “The One Quackery To Rule Them All.” There’s a good reason for that. For homeopathy to work, multiple well-established laws of physics and chemistry that have been demonstrated with incredible planet-sized masses of evidence would have to be not just wrong, but spectacularly wrong. Just look at its two major Laws. First is the Law of Similars, which states that, to relieve symptoms, you should pick a substance that causes those same symptoms in healthy humans. Not only is there no medical or physical basis for this law, but the jokes about it write themselves—or would, if homeopaths hadn’t already written them. Homeopathic Ebola virus to treat Ebola, for instance? Or homeopathic saliva from a rabid dog to treat growling in a child? The list of ridiculousness goes on. (I’m not even going to get into homeopathic “provings,” which is how homeopaths claim to determine which remedy is good for which symptoms.) Basically, homeopathy is based on the principles of sympathetic magic.

Fortunately, for most homeopathic remedies, there’s actually nothing there. In the case of homeopathic saliva from a rabid dog or homeopathic Ebola, that would make the only danger existing to be a danger to the homeopath trying to prepare such compounds without killing himself. (Actually, that’s not true. Homeopaths are so incompetent that they might allow a little of the active substance to remain, thus endangering anyone who might use it.) In any event, the Second Law of Homeopathy is the Law of Infinitesimals. This law states that, to make a remedy stronger, you dilute the remedy. And, wow, do homeopaths ever do that! A typical homeopathic remedy is 30C, with “C” signifying a 100-fold dilution. So a 30 C homeopathic dilution is equal to thirty 100-fold dilutions or (10-2)30, or a 1060-fold dilution. Those of you with a chemistry background will notice right away that this is an incredibly large number compared to Avogadro’s number, which is 6.022 x 1023 and is the number of molecules in a mole of a chemical. So, even if one starts with a mole of a substance (whose weight equals its molecular weight in grams), the resulting 30C dilution will dilute it over 1036-fold beyond the number of starting molecules. In other words, it’s incredibly unlikely that there will be a single molecule of starting substance left, other than potentially any that might “carry over” between serial dilutions sticking to the glassware. As Richard Dawkins put it, the numbers just don’t add up:

Also, 30C is by no means the most “potent” homeopathic dilution there is. Some remedies go up to hundreds of C or even “M,” which signifies a thousand. Basically, any homeopathic dilution above around 12C is water, and dilutions “weaker” than that are generally still so dilute that it is unlikely that the compound included is unlikely to have an effect, although, sadly, that is not always the case, such as with belladonna in homeopathic teething rings.

This brings us to Boiron and Oscillococcinum, or, as Mark Crislip likes to call it, “o-so-silly-o-coccinum.” Why is that? Well, first the starting compound is an extract from duck liver and heart known as Anas barbariae:

Since 1925, Oscillococcinum has been prepared as follows. Into a one litre bottle, a mixture of pancreatic juice and glucose is poured. Next a Canard de Barbarie is decapitated and 35 grams of its liver and 15 grams of its heart are put into the bottle. Why liver? Doctor Roy writes: “The Ancients considered the liver as the seat of suffering, even more important than the heart, which is a very profound insight, because it is on the level of the liver that the pathological modifications of the blood happen, and also there the quality of the energy of our heart muscle changes in a durable manner.” Maybe the French tendency to call any form of not well-being a “crise de foie” (“bilious attack”) had also something to do with it. After 40 days in the sterile bottle, liver and heart autolyse (disintegrate) into a kind of goo, which is then “potentized” with the Korsakov method.

The Korsakov method is a quicker and dirtier method of doing the serial dilutions. Prior to Semyon Nicolaevich Korsakov’s “discovery,” homeopaths used clean glassware for each new 100-fold dilution. Korsakov’s “insight” was to reuse the same glassware for each step, which saved a lot of money and effort when hundreds of dilutions had to be made. He also used distilled water instead of ethanol.

No, I’m not kidding about any of this. This is what Oscillococcinum is. This is how it’s prepared, except that Boiron has industrialized the process so that it can make huge quantities. Boiron’s Oscillococcinum is nothing more than a 200C (or 200 CK, if you want to specify Korsakov dilution) of ground up duck liver and heart that’s been allowed to stew for several weeks until it turns into a disgusting goo. As you might imagine, there is no rigorous evidence that Oscillococcinum has any therapeutic properties (as opposed to a lot of really crappy evidence from poorly designed and controlled clinical trials that homeopaths like to cite). Then, if you go back to the original rationale for this remedy, you’ll see Dr. Joseph Roy, who was serving as a French military physician when the Spanish flu pandemic hit in 1918, examined the blood of victims and claimed to have found a new and strange microorganism that consisted of two unequal balls that performed a quick vibratory motion. Roy dubbed them “oscillococci.” He also found these strange “organisms” in syphilitic ulcers, the blood of cancer patients, the tubercles of tuberculosis patients, and the pus of gonorrhea sufferers. Today, no one is sure just what Roy saw. (Maybe it was dust.) In any case, using homeopathic principles, Roy took a source of these “oscillococci,” and, for whatever reason, that source turned out to be the muscovy duck. Thus was born what is now the homeopathic remedy known as Oscillococcinum.

And finally, we get back to the case I’m talking about:

On November 8, 2018, the Ninth Circuit affirmed a jury verdict in a consumer class action deceptive advertising case in favor of Defendants Boiron Inc. and Boiron USA, Inc. (together, “Boiron”), the sellers of a homeopathic treatment for flu-like symptoms called Oscillococcinum (“Oscillo”). Although the Ninth Circuit’s memorandum decision is marked “Not for Publication” and therefore is non-precedential under Ninth Circuit rules, the decision is still worth noting, as jury verdicts in class action false advertising cases are rare.According to the appellate briefs, Oscillo’s active ingredient is a compound (extracted from the heart and liver of the Muscovy duck for those foodies in our readership) that is subjected to a homeopathic dilution process. The diluted compound is then sprayed onto specially-manufactured granules. Plaintiff argued that, due to the homeopathic dilution process, Oscillo was essentially “water sprayed on sugar,” which could not provide the relief from flu-like symptoms that Boiron advertised. Plaintiff claimed that Boiron had therefore violated two California deceptive advertising statutes, the Unfair Competition Law (“UCL”) and Consumers Legal Remedies Act (“CLRA”).

At the conclusion of a one-week trial in the Central District of California, the jury found in Boiron’s favor that its representations that Oscillo relieves flu-like symptoms were not false. On appeal, the Ninth Circuit affirmed, finding that the jury verdict did not constitute plain error because Boiron presented sufficient evidence from which the jury could have concluded that Oscillo actually works against flu-like symptoms. This was a “battle of the experts” for the jury, the court wrote, that could not be relitigated on appeal. And the jury appeared to have believed Boiron’s expert, clinical studies, and anecdotal evidence more than it believed the plaintiff’s expert, according to the court.

This is, of course, frequently the problem with jury trials involving medicine and science. They often boil down to which party’s expert witnesses are more convincing. On the one side, the side defending science will likely have scientists who lay down the science, but that’s boring. Then, on the pseudoscience side, the witnesses are almost always quacks or pseudoscientists, and quacks and pseudoscientists are frequently convincing.

So what was this case? Well, it was a class action suit against Boiron as described above, and the jury ruled for Boiron, leading homeopathy supporters to rejoice:

So how did this ruling come about? First, we have to go back to 2012, when there was a settlement of a class action suit against Boiron in which Boiron agreed to provide up to $5 million in refunds to consumers who purchased certain Boiron homeopathic products, including Oscillo, Arnicare, Chestal and Coldcalm. Steve Novella wrote about the settlement at the time, noting that Boiron used as its primary expert witness a homeopath who is also a physician who basically admitted there is no scientific evidence to support the claims made by Boiron, but then added the nonsensical argument that there is 200 years of anecdotal experience by homeopaths for the ingredients used. (Never mind that, for instance, in the case of Oscillococcinum, the remedy is only 100 years old.) The products themselves have never been shown in a valid scientific study to be effective for anything, although I note that Boiron still uses two 20 year old placebo-controlled studies that claim to have found that Oscillococcinum decreases the severity and duration of flu-related symptoms. (Placebo vs. placebo, eh?) A 2015 Cochrane review, however, concluded:

There is insufficient good evidence to enable robust conclusions to be made about Oscillococcinum in the prevention or treatment of influenza and influenza‐like illness.

Given the extreme implausibility that duck heart and liver diluted to nothing will have any effect on the course or symptoms of influenza, my take on this is that it should basically be translated as saying that Oscillococcinum does not work. And, no, no further research is needed to conclude that, in my not-so-humble opinion.

But, wait! I hear you saying, “There was a settlement in 2012.” Why did this case go to trial in 2016? Here you go:

One was a nationwide settlement that included all Boiron homeopathic products over a 12-year period of time.

That settlement, in Gallucci v. Boiron, Inc., S.D. Cal., No. 11-2039, provided a $5 million fund to reimburse class members and called for label changes to make clear that the products’ advertised uses hadn’t been evaluated by the Food and Drug Administration (16 CLASS 200, 2/27/15).

The other settlement, in DeLaRosa v. Boiron, Inc., C.D. Cal. No. 10-1569, involved one Boiron product, Childrens’ Coldcalm. The DeLaRosa settlement also provided monetary relief to class members and a similar label change.

But suits persisted, even with the settlements, she said.

In the case that went to trial, Christopher Lewert, representing a California class, alleged the company’s Oscillococcinum (Oscillo) flu remedy was no more effective than a sugar pill.

So:

“What was unique about us is that we had settled before, and it’s like the plaintiffs left us no choice,” Christina G. Sarchio, who represented Boiron, told Bloomberg BNA.

“The company said, ‘you know what, we feel good about our facts, we feel good about our evidence, we don’t feel we’ve done anything wrong, and we’ll leave it to the jury system to make that decision for us,’” Sarchio, with Orrick Herrington and Sutcliffe in Washington, D.C., said.

“It’s otherwise going to be death by a thousand paper cuts. Let’s just pull the band-aid off and see what happens,” she said.

And now here is the truly risible part:

The flu product case was tried to seven jurors, one of whom spoke to the parties afterward, Sarchio said.

That juror said he felt the plaintiffs hadn’t met their burden of proof, she said. “For them to allege the product didn’t work as advertised, they should have demonstrated that it didn’t actually work, and they hadn’t done that.”

Cue the sound of Orac exploding from the illogical nonsense. Hopefully, Avon can reconstruct him. (Blakes 7 fans, as rare as they are in the US, will understand that reference.)

No, no, no, no! In the case of a product purported to be a medicine that will treat a medical condition, the burden of evidence in science is not on the person claiming that the medication doesn’t work. It’s on the company sells it claiming that it does work. If that’s not enough, read this mind-numbingly stupid passage (from a scientific standpoint) from the actual affirmation of the original 2016 ruling:

Fourth, Lewert’s sole theory why Boiron’s packaging was misleading or deceptive was that Oscillo was a sugar pill and ergo could not treat flu symptoms. When the jury found explicitly that Boiron’s representations were not false, it must have implicitly rejected Lewert’s argument that Oscillo was just sugar. The district court did not err in treating that factual finding as having preclusive effect on the UCL claims.

Because Lewert offered no theory as to how Oscillo’s packaging might be misleading if indeed it treats flu symptoms—regardless of the mechanism by which it does so—he presented no evidence that would allow him to prevail under the UCL after the jury rejected his CLRA claims. See Cal. Bus. & Prof. Code § 17200. The district court’s factual finding that Boiron’s claims were not misleading or deceptive was therefore supported by sufficient evidence and not clearly erroneous.

I was left shaking my head in disbelief at the scientific ignorance and outright idiocy. It was one of the rare times when Orac was rendered speechless about support of pseudoscience.

Yes, I know that this ruling is non-precedential, but it is nonetheless a prime example of why scientists and doctors take a dim view of court rulings on science and medicine and why science and medicine are not decided by laws, courts, judges, or juries. Unfortunately, science and medicine policy all too frequently are.

By Orac

Orac is the nom de blog of a humble surgeon/scientist who has an ego just big enough to delude himself that someone, somewhere might actually give a rodent's posterior about his copious verbal meanderings, but just barely small enough to admit to himself that few probably will. That surgeon is otherwise known as David Gorski.

That this particular surgeon has chosen his nom de blog based on a rather cranky and arrogant computer shaped like a clear box of blinking lights that he originally encountered when he became a fan of a 35 year old British SF television show whose special effects were renowned for their BBC/Doctor Who-style low budget look, but whose stories nonetheless resulted in some of the best, most innovative science fiction ever televised, should tell you nearly all that you need to know about Orac. (That, and the length of the preceding sentence.)

DISCLAIMER:: The various written meanderings here are the opinions of Orac and Orac alone, written on his own time. They should never be construed as representing the opinions of any other person or entity, especially Orac's cancer center, department of surgery, medical school, or university. Also note that Orac is nonpartisan; he is more than willing to criticize the statements of anyone, regardless of of political leanings, if that anyone advocates pseudoscience or quackery. Finally, medical commentary is not to be construed in any way as medical advice.

To contact Orac: [email protected]

50 replies on “Boiron, oscillococcinum and homeopathy: Why courts do not decide science”

It’s a bit more complicated than that and it’s easy to cry foul because of perverse judgements.

Firstly, there is the Daubert standard https://en.wikipedia.org/wiki/Daubert_standard which relates to whether a Court should accept the testimony of an “expert” witness. Allen v. Hyland’s is another example of this. When the standard is applied (as in Rosendez v Green Pharmaceuticals)…

“The Court found Mr. Ullman’s testimony to be not credible.”

Secondly, although this is State rather than a Federal matter, the FTC has taken the line that two positive RCTs are sufficient to justify marketing claims for OTC products. It has been argued that this sets the bar WAY too low re substantiation of marketing claims. Even so, the onus IS on vendors to substantiate their marketing claims.

Ultimately, there are severe deficiencies in US Federal/State consumer protection laws and enforcement. Class actions are slow and expensive.

You cite yourself, which do not convince anybody else.
As for autism, why it is more prevalent amongst boys ? Genetic connection is implicated, supported by twin studies.
About vaccination and diabetes 1.
https://www.nejm.org/doi/full/10.1056/nejmoa032665
No link found.
Your mechanistic theory (GAD in vaccines) would require 10 kg egg embryo tissue in vaccine vials, which is utter nonsense

Aarno Syvänen writes,

You cite yourself, which do not convince anybody else.

MJD says,

I’m convinced that Vinu is a valued commenter here at RI. Thanks for your comments, Vinu.

I’m convinced that Vinu is a valued commenter here at RI. Thanks for your comments, Vinu.

Maybe you two could <a href=https://pics.me.me/im-looking-for-a-jo-bud-with-a-twist-35357866.png”>get together in real life (PNG, mildly NSFW, depending; the 2007 Craigslist classic).

Until I noticed who posted this, I was convinced they were being ironic. Sadly, that kind of subtlety is beyond vinu’s reach.

“Science is not decided by laws, courts, judges, or juries.” Correction…. The result of “bad” science is,& should continue to be,decided by laws, courts, judges & juries. Examples of harm & large monetary awards paid to families of injured & deceased patients are too numerous to mention here.

I always liked what Harriet Hall (at least, I think it was her) said about it: “To prepare homeopathic oscillococcinum, take some duck liver and dilute the duck out of it until nothing is left but the quack.”

Orac writes,

…homeopathic flu remedy Oscillococcinum that I learned about from Jonathan Jarry a couple of days ago.

MJD says,

For those who don’t know the skeptic Jonathan Jarry, here’s his profile:

https://www.mcgill.ca/oss/jonathan-jarry-msc-science-communicator

In Jonathan’s profile it states, “Thinking about science (meta-science) and thinking about thinking (meta-cognition) are the things he lives for. So… a lot of thinking, basically.”

@ Orac,

Jonathan Jarry would be an interesting person to write a guest post for RI. Just hoping you agree, and thereafter take Denice Walter off the list of potential candidates to write a guest post.

Michael, no one here – OTHER THAN YOU- is soliciting for a guest post, including me.
I am perfectly content to comment and present brief reports about alt med idiocy whenever I encounter it which may provide blog fodder- or laughs- for Orac and others. That’s it. If I were truly interested in writing posts I would either get my own blog or privately ask bloggers I know for an opportunity to submit an article that they might consider.

I think that you don’t like that a few people here appreciate what I write and compliment me. Too bad.

If you want admiration from Orac’s commenters, I suggest you work on your skills and general knowledge base. Narad, Julian, and Bacon can recommend reading lists.
If that is too much work for you, Natural News, the Progressive Radio Network and the Bolen Report are always looking for citizen journalists- and they have millions of devoted followers. Ring them up.

If you want admiration from Orac’s commenters, I suggest you work on your skills and general knowledge base.

Figuring out that the world doesn’t fucking revolve around himself wouldn’t hurt, either.

Let’s assume the decision had gone the other way. We’d all be hooting with triumph at the nonesense that is homeopathy being demonstrated to be so in a court of law. Would Dana or Benneth have written a blog post telling us all to cool our jets because this is merely legal opinion and not scientific fact?

Perhaps, but I probably wouldn’t have. Pretty much every time I write about a court decision that affirms science, I tend to frame it as a something that means nothing with respect to whether or not the actual science is valid but a good thing nonetheless that we should be happy about because of how often the courts get it wrong. That’s because I’m deeply skeptical of how US law and courts handle matters of science, regardless of which way the decision goes. The Vaccine Court is the only court that comes close to getting it right the vast majority of the time, and even the Vaccine Court screws up egregiously from time to time.

I worked and taught in a law school a gazillion years ago. One of our faculty was very outspoken that the courts did not know sh*t about science and what really constituted clinical malpractice, scientific fraud, or abuse of what few laws we had then to protect the public against shysters and charlatans. The procedures for informing judges and juries prior to trial were a complete joke and predicated on who could cough up the slickest “expert” witness.

He was really militant about it and said he refused even to address the issue of how you teach judges the simplest basics of the life sciences and clinical medicine. You could not win that battle, and the courts were no place to fight those battles. If they had a slicker and more persuasive “expert,” it was a losing game.

Agree with Orac that the real issue is that these dumb judicial/case law decisions form the basis of policy. Who cares about the case law precedents, really? Everyone who has entered this fray knows it’s ridiculous and has nothing to do with actual scientific fact. It’s policy implications that really matter in the long term.

From Rosendez v Green Pharmaceuticals –

“The Defendant presented the testimony of Gegory Dana Ullman who is a homeopathic practitioner. He outlined the theory of homeopathic treatment and presented his opinion as to the value and effectiveness of homeopathic remedies. The Court found Mr. Ullman’s testimony to be not credible. Mr. Ullman’s bias in favor of homeopathy and against conventional medicine was readily apparent from this testimony. He admitted that he was not an impartial expert but rather is a passionate advocate of homeopathy. He posted on Twitter that he views conventional medicine as witchcraft. He opined that conventional medical science cannot be trusted.

Mr. Ullman’s credibility was undermined by his adission that he advocated the use of a radionics machine, whereby a physician puts a picture of his patients on on side, and a few medicines on the other side, and then sees which o the medicines the needle points toward. He relied on his personal experience with a radionics machine.

Mr. Ullman’s testimony was unhelpful in understanding the purported efficacy of the ingredients of SnoreStop to reduce the symptoms of snoring. Although he is familiar with the theory of homeopathic treatment, his opinions regarding its effectiveness was unsupported and biased. The Court gave no weight to his testimony.”

Dana Ullman (didn’t know his real name is Greg) used to discuss his opinions on sceptic blog’s until he got sick of losing miserably. Then, for a time, he simply posted his opinion but never returned to see his opinion being thoroughly dismantled. I haven’t seen him around for years now.

Look for the video(s) of his self-hosted birthday party if you’re around. I’d do it myself, but I have to maintain too many moving parts for thr next couple of hours.

We would have viewed it as reaffirming, rather than affirming, science. Also, some homeopaths would have lost serious cash.

“Let’s assume the decision had gone the other way. We’d all be hooting with triumph at the nonesense that is homeopathy being demonstrated to be so in a court of law.Would Dana or Benneth have written a blog post telling us all to cool our jets because this is merely legal opinion and not scientific fact?”

In that instance, homeopathy supporters would probably be griping that the court was a pawn of Big Pharma, and shoveling another pile of testimonials our way as “provings”.

I don’t accept what any court decision claims as science, unless it’s an Italian court. They never get it wrong.

Science is not decided by laws, courts, judges, or juries

Even worse, it appears that science is increasingly decided by mob, judging by the sounds from the quackosphere and the antivaccine crowd (and we all know that the IQ of a mob is the IQ of its most loud-mouthed member divided by the number of mobsters)

Anyway, for those interested in the financial picture behind this particular SCAM, here’s Boiron’s annual report for 2016: http://quote.morningstar.com/stock-filing/Annual-Report/2016/12/31/t.aspx?t=XPAR:BOI&ft=&d=0aa104b35ccf3ccacc8053e9833f0bff
Pp. 92 in particular is an interesting read, as it turns out that Boiron’s biggest expense is marketing (141 million euros, or 23% of gross sales), followed by preparation and distribution (22%), and production (20%). Oh, what about R&D, you ask? That’s their lowest specified expense: a measly 4 million euro’s, 0.64% of gross sales.
And still I can’t imagine what kind of ‘research’ these clowns blow 4 million on — how to fool people even better, perhaps?
Methinks this is a clear sign that these people know that they’re selling snake oil (OK, putrid duck entrails), and getting away with it too…

we all know that the IQ of a mob is the IQ of its most loud-mouthed member

I know that was a joke but, interestingly, there is a thing called “accuracy of crowds in determining big numbers” (it might have an official name). The idea is that, if you ask a question like “how heavy is Mt Everest?”, if you ask a large number of people to guess the answer off the top of their heads, their guesses will vary by a very large margin, but if you calculate the average of all the guesses, the result is likely to be very close to what experts have estimated the answer to be.
(Hope that makes sense).

Why yes! Monsanto used to have ducks. But the RoundUp killed all the grasses in their fields. Then the insects lost their habitats and started dying off. So the ducks didn’t have enough to eat, and starved to death. So they sold the corpses to Boiron. A win-win!

Oh Dangerous One!

It obviously is a genetically engineered duck : just look at the horribly mutated red flesh on its face and its terribly shortened, useless left leg! Tragic!

@ JP:

Of course.
And so has Mike Adams ( see Natural News, today) and he’s ready to protect the US from Deep State Traitors.( various videos)
Risible.

( additionally, and not risible at all: he and his minions continue to insult and throw hate upon trans and non-binary people. See especially a post by A. Moffit)

Don’t blame the court. Judges and juries don’t decide science, but they don’t decide science policy either. They apply policy to specific cases, in an adversary system where ‘correct’ results can fall due to relatively weaker presentation. Thems the rules. The basic principles of evidence still in use were created before modern-sciiece-as-we-know-it was commonplace, and in the context of a rising merchant class wresting social control from feudal aristocracies. The Oscillo lawsuit isn’t farmed under law as a science case, or a medical case, but as a business/i> case. The dominant ideology of our business law being libertarian free-market capitalism, not only in the burden of proof on the plaintiff, but it’s a damn high burden. The true first right of capitalism is the right to make exorbitant profit of the gullibility of rubes. The claims for Oscillo are actually fairly weak by the standards of advertising, marketing and promotion. Just shortening the length of cold symptoms isn’t going to make get glamorous, successfull. loved, or even laid. The only thing egregious abut Oscillo’s claim is that it’s literal, and supposedly backed by ‘science’. As scams go, the hubris and venality of each sale of box of Oscillo doesn’t move the needle so you could notice. It’s wrongness all lies in the volume.

Anyway, the point is, to get a different outcome, we’d probably need to have different laws, and that would probably involve a sea-change away from existing thinking about civil and criminal law. I say ‘probably’ because that last pull quote in the OP suggests Lewert at all could have made a more legally persuasive case. If the jury “implicitly rejected Lewert’s argument that Oscillo was just sugar”, it sounds like the plaintiffs didn’t establish t5o the jury’s satidfaction that the process of 30C dilution leaves no actual duck goo on the “specially-manufactured granules” onto which it is sprayed. Perhaps the principle of Avogadro’s number is too abstract for non-scientists, and the plaintiffs could have engaged a couple labs to identify the composition of blinded samples of Oscillo purchased at retail, and demonstrated “look, Nada but sugar in the actual thing!” (?)

But what’s not clear from the quotes presented above is how the jury interpreted Boiron’s claim. The complaint appears only to reference Oscillo’s packaging, which says “Reduces duration and severity of flu symptoms.” That is, the packaging does not seem to reference the “20 year old placebo-controlled studies” to amplify the claim to “reduces duration and severity of flu symptoms significantly beyond placebo.” So, as far as the law is concerned, maybe the fact the pills are just suar doesn’t matter. “Lewert offered no theory as to how Oscillo’s packaging might be misleading if indeed it treats flu symptoms—regardless of the mechanism by which it does so.” If the mechanism doesn’t matter, then placebo effects would seem to cover the claim. The minions may all agree that this is absurd, but it sounds like it may well be the correct interpretation of laws that are now anachronistic in the context of OTC healthcare products.

In short, blame Orrin Hatch, not the 9th circuit.

Orac often cites his previous posts when making a point, (e.g., Orac’s comment on DECEMBER 7, 2018 AT 12:07 PM). I’m glad that Orac does in that a tremendous amount of effort has gone into such writings. In parallel, the same can be said of Vinu’s work. Therefore, in this strange place called Respectful Insolence, let’s continue to respect Vinu as a valued participant.

MJD,

You forget something: Orac’s previous posts contain a big amount of links to the original source material such as scientific publications, news articles and more; thus, if Orac were to link up to original materials (primary sources), each blog post he write may contain up to 500 potential links and some more. The primary source material is indeed evaluated for quality, by Orac. It is those primary source most of us all have examined also.

Vinu also self-cite but his primary sources in his self-cites does not support any claims that he makes upon using these primary citations.

In this case, it is unfair from you to give an equal status to Vinu’s self-cites as compared to Orac’s self-cites and given his insistence and your insistence on flogging the same horse so persistently makes you both negatively valued commenters.

In other, you both grates on our collective nerves and it get really irritating :8

Get it?

Alain

let’s continue to respect Vinu as a valued participant

Tinu, jizzrag. Take the attempted handjob exchange elsewhere. Hell, I don’t think even the vinucube really gives a shit about your obnoxiously imbecilic presence.

I suppose Vinu is only valued by MJD.
To me Vinu and MJD are not valued at all. I tend to ignore anything they [strike]contribute[/strike] write.

Side note: Who came up with that name? To me this sounds like it is meant to be something like ACME earthquake pills.

IIRC, Oscillococcinum was so named because the inventor saw (or thought he saw) some oscillating round thingies when looking under microscope at some liver’s slices of a flu-diseased duck. He thought those were round bacteria, a.k.a; ‘cocci’ (like in Staphylococcus), and were the causative agent of flu. So, he named them oscillo-cocci.
Then he made a remedies of it by making an extreme dilution of it, in pure homeopathy standard.

(note to mostly all regulars – long time no see – glad you are still around in these trying times)

Comments are closed.