fraud disclaimers
Is a disclaimer for a medical product enough to protect the company against prosecution for fraud?
<p>I keep seeing adds for garbage products that directly claim medical benefits to using their product, then at the bottom of the site will have a disclaimer stating that their product "is not intended for use on humans or animals" and are not "intended for medical advice."</p>

<p>In the United States legal system, is a last minute disclaimer in direct contradiction to the bulk of the literature published by the business really enough to safeguard them from legal ramifications?</p>

<p>As an example:<a href="http://www.mbdisc.com/energy-wristbands/" rel="nofollow noreferrer">energy bands site</a></p>

<p>By law, such companies have to give such disclaimers if their products are not approved by the federal government, i.e. the FDA, which evaluates and licenses medical products after testing for safety and if they actually are beneficial in a medical sense.</p>

<p>The disclaimer is clear:</p>

<blockquote>
  <p>These guidelines are solely for educational and informational
  purposes. The information is no way intended to be medical advice.</p>
</blockquote>

<p>Read <em>We are not giving medical advice.</em></p>

<blockquote>
  <p>Please consult a medical or health professional before you begin this
  or any health program, if you have any questions or concerns about
  your health.</p>
</blockquote>

<p><em>Don't take our word for it and talk to a doctor.</em></p>

<blockquote>
  <p>Mbdisc are not intended to be used in the cure, treatment or
  prevention of disease in man or animals.</p>
</blockquote>

<p><em>These products aren't meant to do anything.</em></p>

<blockquote>
  <p>Individual results will vary.</p>
</blockquote>

<p>And the ultimate disclaimer: <em>Your results will vary.</em></p>

<p>You could sue a company in civil court if you were injured by such a device or one of the many health supplements out there. The validity of such disclaimers can be argued in court, but your results will vary. Google "health supplement lawsuit" and see what you find.</p>

<p>The disclaimers are not related to fraud, they are related to the fact that anything held out to have medical efficacy is subject to special federal regulations. If you market some herpetological lipid as mechanical lubricant, then you're much less liable. If you market that same substance as a cure for cancer, you will have violated federal regulations pertaining to manufacture and sale of drugs.  This disclaimer means you are not selling the lipid as a curative. If you sell peanut oil as snake oil, that is fraud and you might be sued or criminally prosecuted, but you will not have the FDA coming down on you. Energy bands do not make sufficiently specific claims that there is fraud.</p>

<p>The title to your question asks about ‘prosecution for fraud,’ but the text goes on to ask a broader question about ‘legal ramifications.’ The details are very important when it comes to prosecuting fraud; there are very many different state and federal fraud offences. Although the essence of criminal fraud is deception for financial gain, deceptive <strong>advertising</strong> is more commonly addressed by <a href="https://en.wikipedia.org/wiki/Consumer_protection" rel="nofollow noreferrer">consumer protection</a> laws.</p>
<p>In the United States, federal consumer protection laws are enforced by the Federal Trade Commission’s <a href="https://www.ftc.gov/about-ftc/bureaus-offices/bureau-consumer-protection" rel="nofollow noreferrer">Bureau of Consumer Protection</a>. The FTC’s page on <a href="https://www.ftc.gov/news-events/media-resources/truth-advertising/health-claims" rel="nofollow noreferrer">Health Claims</a> identifies a long list of companies that have been charged with or penalised for deceptively advertising health products. For example, right now the <a href="https://www.ftc.gov/news-events/press-releases/2018/02/new-york-based-supplement-seller-barred-false-unsupported-health" rel="nofollow noreferrer">most recent announcement on that page</a> reads:</p>
<blockquote>
<p>The FTC charged Telomerase Activation Sciences, Inc. and Noel Patton (collectively, TA Sciences) with lacking the scientific evidence to support claims that their capsules, powders, and creams could provide a broad range of anti-aging and other health benefits.</p>
</blockquote>
<p>The FTC’s <a href="https://www.ftc.gov/tips-advice/business-center/guidance/advertising-faqs-guide-small-business" rel="nofollow noreferrer">Advertising FAQs</a> provide some further information about how the FTC views fine print disclaimers:</p>
<blockquote>
<p>When the disclosure of qualifying information is necessary to prevent an ad from being deceptive, the information should be presented clearly and conspicuously so that consumers can actually notice and understand it. A fine-print disclosure at the bottom of a print ad, a disclaimer buried in a body of text unrelated to the claim being qualified, a brief video superscript in a television ad, or a disclaimer that is easily missed on a website are not likely to be effective. Nor can advertisers use fine print to contradict other statements in an ad or to clear up misimpressions that the ad would leave otherwise. For example, if an ad for a diet product claims &quot;Lose 10 pounds in one week without dieting,&quot; the fine-print statement &quot;Diet and exercise required&quot; is insufficient to remedy the deceptive claim in the ad.</p>
</blockquote>
<p>American consumers can <a href="https://www.ftccomplaintassistant.gov" rel="nofollow noreferrer">complain directly to the FTC</a> about deceptive trade practices. However, the Advertising FAQs also explain that the FTC does not have the resources to pursue every case:</p>
<blockquote>
<p><strong>How does the FTC decide what cases to bring?</strong></p>
<p>The FTC weighs several factors, including:</p>
<ul>
<li>FTC jurisdiction. Although the FTC has jurisdiction over ads for most products and services, Congress has given other government agencies the authority to investigate advertising by airlines, banks, insurance companies, common carriers, and companies that sell securities and commodities.</li>
<li>The geographic scope of the advertising campaign. The FTC concentrates on national advertising and usually refers local matters to state, county, or city agencies.</li>
<li>The extent to which an ad represents a pattern of deception, rather than an individual dispute between a consumer and a business or a dispute between two competitors ...</li>
<li>The amount of injury – to consumers' health, safety, or wallets – that could result if consumers rely on the deceptive claim. The FTC concentrates on cases that could affect consumers' health or safety (for example, deceptive health claims for foods or over-the-counter drugs) or cases that result in widespread economic injury.</li>
</ul>
</blockquote>
