civil-law commerce advertisements
When is making and selling &quot;snake oil&quot; illegal?
<p>There's an interesting story <a href="http://gizmodo.com/nasa-calls-bullshit-on-goops-120-bio-frequency-healing-1796309360" rel="nofollow noreferrer">in the news lately</a> about a company selling "Bio-frequency healing" stickers, made from "the same material used in NASA space-suits", that supposedly heal us using some sort of energy. It's mainly in the news because of how obviously absurd the claims are, and even NASA has commented saying that the whole idea is scientifically laughable.</p>

<p>I'm sure these magic stickers don't cause much harm, if any, to the user. Would a company still be doing anything illegal by selling something which can be scientifically proven to not do what they claim it does?</p>

<p>I understand some related legal concepts, like a person not receiving a product as it was described (like a used car with undisclosed problems, in the "Lemon Law", for example). But I'm wondering if there's anything specifically related to this type of business?</p>

<p>To put it more simply: how and/or when is making and selling snake oil against the law?</p>

<p>Note: I am from the United States, but I would also be interested to hear other major countries' laws related to this issue.</p>

<p>Making and selling snake oil are okay, the problem arises with advertising it. The specific problem could be making deceptive claims, which would run afoul of all sorts of regulations. We can start with the quote alleged in the article, that purportedly Goop said:</p>

<blockquote>
  <p>Human bodies operate at an ideal energetic frequency, but everyday
  stresses and anxiety can throw off our internal balance, depleting our
  energy reserves and weakening our immune systems. Body Vibes stickers
  <em>(made with the same conductive carbon material NASA uses to line space
  suits so they can monitor an astronaut’s vitals during wear)</em> come
  pre-programmed to an ideal frequency, allowing them to target
  imbalances.</p>
</blockquote>

<p>Such a claim is not currently made on their web site, but a similar claim is <a href="http://goop.com/wearable-stickers-that-promote-healing-really/" rel="nofollow noreferrer">here</a></p>

<blockquote>
  <p>Human bodies operate at an ideal energetic frequency, but everyday
  stresses and anxiety can throw off our internal balance, depleting our
  energy reserves and weakening our immune systems. Body Vibes stickers
  come pre-programmed to an ideal frequency, allowing them to target
  imbalances.</p>
</blockquote>

<p>It appears that they retracted the italicized bit about NASA. The article says that 'the brand is now promoting stickers called “Body Vibes”', presumably "the brand" referring to Goop. It does seem to be true that they are <em>promoting</em> it, but they are not selling it: they do refer to a different web page for <a href="https://www.shopbodyvibes.com" rel="nofollow noreferrer">shopbodyvibes.com</a>, and those folks are selling <a href="https://www.shopbodyvibes.com/variety-packs/variety-12-pack" rel="nofollow noreferrer">something</a>, but they don't actually say what the things are, much less what they do. The apparent manufacturer / creator of the product, <a href="https://alphabiocentrix.com" rel="nofollow noreferrer">AlphaBio Centrix</a>, states that they <a href="https://alphabiocentrix.com/product-info-updates/alphabio-centrix-rd-announces-a-new-energy-patch-for-reducing-migraine-headaches/" rel="nofollow noreferrer">developed an "energy" patch</a>, and have other information <a href="https://alphabiocentrix.com/bioenergy-patches-for-balancing-and-frequency-science/" rel="nofollow noreferrer">here</a> on "BioEnergy patches". That blurb says, in part that</p>

<blockquote>
  <p>The patches are made from a specialized Biofeedback material designed
  for NASA to inner line the space suits.</p>
</blockquote>

<p>This is a different claim from the one made on Goop, and for all we know somebody did design it for NASA (though NASA does not use it).</p>

<p>The article also claims</p>

<blockquote>
  <p>The stickers—which run as high as $120 for a pack of 24—promise to
  assuage various ailments, including anxiety and pain, using something
  called “Bio Energy Synthesis Technology.”</p>
</blockquote>

<p>but the <a href="https://www.shopbodyvibes.com/variety-packs/variety-12-pack" rel="nofollow noreferrer">aforementioned actual sellers</a> do not make any claim at all, they just have a set of words (Anti-Anxiety, At The Beach, Beauty Sleep, Chill etc.)</p>

<p>There are federal regulations about <a href="https://www.ftc.gov/news-events/media-resources/truth-advertising" rel="nofollow noreferrer">truth in advertising</a>, and the FTC pays special attention to <a href="https://www.ftc.gov/news-events/media-resources/truth-advertising/health-claims" rel="nofollow noreferrer">health and fitness claims</a>, for example the makers of 5 Hour Energy drinklets <a href="https://www.law360.com/articles/890536/5-hour-energy-ordered-to-pay-4-3m-for-deceptive-ads" rel="nofollow noreferrer">had to pay $4.3M</a> for deceptive advertising (in Washington state). The problem (not necessarily insurmountable) with going after somebody for making false advertising claims is that the most false claim (about NASA suits) is made by somebody that doesn't sell or manufacture the product,  the claims made by the presumed manufacturer ("programmed with the frequencies of nature to help the body energize itself") are sufficiently vacuous as to have no truth value at all. If someone sold a product that did make a sufficiently specific claim that it could conceivably be refuted, then there could be a deceptive advertising claim. The reason why the energy crystal market still exists is they don't make any claims capable of disproof.</p>

<h2>Australia</h2>
<p>The relevant legislation is the <a href="http://consumerlaw.gov.au/the-australian-consumer-law/" rel="nofollow noreferrer">Australian Consumer Law</a> (ACL):</p>
<blockquote>
<p>The ACL is administered by the ACCC and state and territory consumer protection agencies and is enforced by all Australian courts and tribunals, including the courts and tribunals of the States and Territories.</p>
<p>The protections in the ACL are generally reflected in similar provisions in the <em>Australian Securities and Investments Commission Act 2001</em> (ASIC Act), so that financial products and services are treated in the same way.</p>
</blockquote>
<p>From the ACC <a href="https://www.accc.gov.au/consumers/misleading-claims-advertising/false-or-misleading-claims" rel="nofollow noreferrer">website</a>:</p>
<blockquote>
<p>Businesses are not allowed to make statements that are incorrect or likely to create a false impression.</p>
<p>This rule applies to their advertising, their product packaging, and any information provided to you by their staff or online shopping services. It also applies to any statements made by businesses in the media or online, such as testimonials on their websites or social media pages.</p>
<p>It makes no difference whether the business intended to mislead you or not.</p>
<p>There is one exception to this rule. Sometimes businesses may use wildly exaggerated or vague claims about a product or service that no one could possibly treat seriously or find misleading. For example, a restaurant claims they have the ‘best steaks on earth’. These types of claims are known as ‘<a href="https://en.wikipedia.org/wiki/Puffery" rel="nofollow noreferrer">puffery</a>’ and are not considered misleading.</p>
</blockquote>
<p><em>Fine print</em> will not protect a business. If the fine print is at variance from the message conveyed in the general information than this is, of itself, illegal.</p>
<p>For example, the <a href="https://www.shopbodyvibes.com/" rel="nofollow noreferrer">Body Vibes</a> website makes a number of claims that, on the face of it, would fall foul of Australian law.</p>
<blockquote>
<p>... natural bio-frequencies through energy resonant exchange to optimize brain and body functions, restore missing cell communication ...</p>
</blockquote>
<p>... is probably OK because it is total crap - &quot;natural bio-frequencies&quot;, &quot;energy resonant exchange&quot; and &quot;missing cell communication&quot; have as much existence as flying pigs. However, the next part is problematic for the business:</p>
<blockquote>
<p>accelerate the body’s natural ability to heal itself</p>
</blockquote>
<p>... because there are things that &quot;accelerate the body’s natural ability to heal itself&quot;: good nutrition, appropriate exercise, rest. Its just that the piece of junk they are selling isn't something that does this. I could go on.</p>
<p>As an aside this is also illegal under Australian law:</p>
<blockquote>
<p>ALL SALES ARE FINAL UNLESS DAMAGED UPON RECEIPT</p>
</blockquote>
<p>The ACL gives a right to repair, replacement or refund (at the suppliers discretion) if the product fails to perform its advertised functions.</p>
