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“Calories Don’t Count” Author Convicted of Fraud

Calories Don’t Count, published in 1961, advocated an unlimited intake of fat and drastic restriction of carbohydrates so that the mix was about 65% fat, 30% protein, and 5% carbohydrate. The book was written by Herman Taller, M.D., an obstetrician/gynecologist who claimed that the diet had cured his own obesity and “could not fail when …

Calories Don’t Count, published in 1961, advocated an unlimited intake of fat and drastic restriction of carbohydrates so that the mix was about 65% fat, 30% protein, and 5% carbohydrate. The book was written by Herman Taller, M.D., an obstetrician/gynecologist who claimed that the diet had cured his own obesity and “could not fail when properly applied.” [1]

Philip L. White, Ph.D., who headed the American Medical Association’s Department of Nutrition, noted that the book attributed a miraculous property to fats of vegetable origin (mostly high-linolinic acid margarine and safflower oil), which Taller claimed would “wash out” fatty tissue. White concluded that Taller’s notions were unproven and unlikely to be true, that “calories do count,” and that the book was “a grave injustice to the intelligent public.” [2]

Freedom of the press enables authors to promote fanciful health-related theories without fear of prosecution, but Taller and three business associates got into trouble when claims from the book were used to promote the sale of safflower oil capsules.

Court documents state that the book was originally planned to be an expression of Dr. Taller’s views—arrived at after some experimentation and research and probably held with sincerity. Taller had been prescribing three ounces of liquid safflower oil per day for his patients, and this dosage appeared in the drafts and galleys of his book. Before the book was published, however, he became involved in an enterprise organized to distribute safflower oil capsules. To create a demand for these, he persuaded his publisher to change the text so that the recommended dosage would be six capsules per day and to indicate that these could be obtained from the new enterprise. The packages of capsules in turn, were labeled “CDC” and marketed with a booklet identifying them with Dr. Taller’s “Calories Don’t Count’ Weight Control Program.” The revised capsule dosage contained only 1/15 as much safflower oil as the liquid oil dosage originally recommended, which would mean that many more capsules would be required to reach the recommended dosage [3].

In 1962, about eight months after the book was published, the FDA seized a supply of  CDC’s safflower oil capsules that were labeled “For use as directed with the CDC Calories Don’t Count Weight Control Program.” At the time of the seizure, two million copies of the book and more than $500,000 worth of safflower oil capsules had been sold. A few months later, the court ordered the capsules to be destroyed [4].

In 1967, Taller was convicted of 12 counts of mail fraud and drug law violations. The government had charged that Taller had knowingly engaged in a scheme to induce people to buy safflower oil capsules based on principles espoused in his book. The criminal case was not based on whether the book’s advice was sound but on the use of parts of it in labeling and advertising that made the capsules misbranded.

Before the trial, two companies and three of their officers pleaded guilty and received the following sentences.

  • CDC Pharmaceutical, Inc., the firm that produced and sold the capsules, was fined $1,000.
  • CDC’s parent company, Cove Vitamins and Pharmaceuticals, Inc., was fined $2,000.
  • Company officers Harry Bobley and Edward Bobley were each fined $2,000 and received six-month suspended sentences.
  • F. Kenneth Beirn, a CDC director who pleaded guilty to one count, was fined $1,000 and placed on probation [5].

At the trial, the jury was told to consider only the claims made for the capsules in their marketing materials—control of body weight, reduction of obesity, and maintenance of slimness. The label, box, and insert of the CDC Capsules stated that a person could consume thousands of calories daily without regard for total caloric intake, as long as he ate a high-fat diet together with the CDC capsules. The Government also charged that Taller had violated the Mail Fraud Statute by publishing false claims for CDC capsules in window displays, streamers, and newspaper ads. 

During the trial, Taller admitted that the book’s advice would not work, even in terms of his own theories, but he claimed that the book had been ghost-written and that others involved in its promotion had modified it for broader public appeal. However, The jury found him guilty for 8 of 45 alleged mail-fraud counts, three violations of the Food, Drug, and Cosmetics Act, and one conspiracy chargeHe was fined $7,000, given a 2-year suspended prison sentence, and placed on two years’ probation [6]. The U.S. Court of Appeals upheld his conviction in 1968 [3].

References
  1. Taller H. Calories Don’t Count. Simon & Schuster, New York, 1961.
  2. White PL. Book review: Calories Don’t Count. JAMA, March 10, 1962.
  3. Decision. United States v. Taller. U.S. Court of Appeals, Second Circuit, Case No. 355, Docket 31594, May 1, 1968.
  4. CDC capsules. Notices of Judgment under the Federal Food, Drug, and Cosmetic Act, 7941-8000, May 1965, pp 360-364.
  5. “Calories Don’t Count” author convicted of fraud and conspiracy. National Better Business Bureau service bulletin, May 1967.
  6. Field report, New York District. FDA Papers, Sept 1967, p 28.


Weight Loss Fraud and Quackery: Guidelines for identification

Fraudulent weight loss products and programs often rely on unscrupulous but persuasive combinations of the message, program, ingredients, mystique, and method of availability. A weight loss product or program should be suspect if it does one or more of the following: Message Claims or implies a large, fast weight loss—often promised as easy, effortless, guaranteed …

Fraudulent weight loss products and programs often rely on unscrupulous but persuasive combinations of the message, program, ingredients, mystique, and method of availability. A weight loss product or program should be suspect if it does one or more of the following:

Message
  • Claims or implies a large, fast weight loss—often promised as easy, effortless, guaranteed or permanent. (Recommended loss for most people is no more than two pounds per week.)
    Implies weight can be lost without restricting calories or exercising, and discounts the benefits of exercise.
  • Uses typical quackery terms such as: miraculous, breakthrough, exclusive, secret, unique, ancient, accidental discovery, doctor developed.
  • Claims to get rid of “cellulite.” Cellulite does not exist and reference to it is a red flag warning of fraud or misinformation.
  • Relies heavily on undocumented case histories, before and after photos, and testimonials by “satisfied customers” (who are often paid for testimony which is written by the advertiser).
  • Misuses medical or technical terms, refers to studies without giving complete references, claims government approval.
  • Professes to be a treatment for a wide range of ailments and nutritional deficiencies as well as for weight loss.
  • Makes claims that are not stated on the label.
Program
  • Promotes a medically unsupervised diet of less than 1000 calories per day.
  • Diagnoses nutrient deficiencies with computer-scored questionnaire and prescribes vitamins and supplements (rather than a balanced diet). Recommends them in excess of 100% of Recommended Dietary Allowance.
  • Requires special foods purchased from the company rather than conventional foods.
  • Promotes aids and devices such as body wraps, sauna belts, electronic muscle stimulators, passive motion tables, ear stapling, aromatherapy, appetite patches and acupuncture.
  • Promotes a nutritional plan without relying on at least one counselor or author with nutrition credentials. (Many who self-identify as “nutritionists” have no credentials. Licensed nutritionists, nutrition educators and dietitians do. The science of nutrition is taught only through college Family Consumer Science,
  • Dietetics and related departments.)
  • Fails to state risks or recommend a medical exam.
Ingredients
  • Uses unproven, bogus or potentially dangerous ingredients such as dinitrophenol, spirulina, amino acid supplements, glucomannan, human chorionic gonadotrophin hormone (HCG), diuretics, slimming teas, echinacia root, bee pollen, fennel, chickweed, ephedra and starch blockers.
  • Claims ingredients will block digestion or surround calories, starches, carbohydrates or fats, and remove them from the body.
Mystique
  • Encourages reliance on a guru figure who has the “ultimate answers.”
  • Grants mystical properties to certain foods or ingredients.
  • Bases plan on faddish ideas, such as food allergies, forbidden foods, blood type or “magic combinations” of foods.
  • Declares that the established medical community is against this discovery and refuses to accept its miraculous benefits.
Method of availability
  • Is sold by self-proclaimed health advisors or “nutritionists,” often door-to-door, in “health food” stores, or a chiropractor’s office.
  • Distributes through hard-sell mail order advertisements, television infomercials, or ads that list only a toll-free number without any address, indicating possible Postal Service action against the company.\
  • Demands large advance payments or long-term contracts. (Payment should be pay-as-you-go, or refundable.)
  • Uses high pressure sales tactics, one-time-only deals, or recruitment for a pyramid sales organization.
  • Displays prominent money-back guarantee. (A common complaint against such companies is that this is an empty promise and they do not honor their guarantees).
  • Questions and complaints should be directed to your State Attorney General’s Office, Consumer Affairs.
  • Other agencies concerned with fraud are the FDA, FTC, Postal Service and Better Business Bureau.

Excerpted from “Weight Loss Fraud and Quackery,” by Francie M. Berg. Copyright 1995. Healthy Weight Network, Hettinger, ND.

This article was posted on October 23, 2008