Why Doesn’t the FTC Attack False Chiropractic Claims?


Stephen Barrett, M.D.
May 8, 2019

It puzzles me that the U.S. Federal Trade Commission has never publicly attacked any of the false or misleading claims that are common in chiropractic advertising. In the early 1970s, a colleague of mine and our Congressional Representative (Fred Rooney) complained about a local chiropractic newspaper ad. Gerald J. Thain, the FTC’s Assistant Director for National Advertising, replied that because the distribution was only local, the FTC’s jurisdiction was uncertain and its resources too limited to give the matter enforcement priority. Thain also suggested that we contact the Pennsylvania Bureau of Consumer Protection [l]. Congressman Rooney responded (in part):

I do, of course, recognize the limited impact upon “interstate commerce” which the subject advertisement . . . may have had. My concern, however, is that this and other advertising texts making grossly exaggerated claims for the value of chiropractic services are being distributed by the hundreds, perhaps thousands of newspapers nationwide. Further, I believe that investigation will disclose that stock ads are being distributed nationwide for placement in local newspapers by local chiropractors. . . . I believe you will find the problem nationwide in scope, that it probably involves a majority of the nation’s newspapers and that what really is at stake in a massive deception of the public to rely upon chiropractic services for treatment of extremely serious medical or mental disorders. . . . I would appreciate it very much if you would re-think this matter in view of its potential for serious harm to the public health nationwide [2].

Meanwhile, a Rooney staff member notified me:

We have explored further with the FTC and the American Law Division of the Library of Congress the extent of the FTC’s authority to regulate advertising such as that which chiropractors in the Lehigh Valley and other areas have in­serted in newspapers. The American Law Division has concurred with the FTC that authority does not now exist for the FTC to control such advertising. The House Interstate and Foreign Commerce Committee, of which Congressman Rooney is a member, currently is working on legislation which would broaden the FTC’s authority from these business activities conducted solely “in” interstate commerce to include activities “in or affecting” interstate commerce. It is believed that broadening of authority would provide basis for FTC examination of chiropractic advertising practices [3].

Today, paragraph 45(a)(1) of the FTC Act states that the Commission has the power to deal with “unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce [4].

In 1988, after the American Chiropractic Association inserted an advertising brochure in Reader’s Digest magazine, National Council Against Health Fraud president, William T. Jarvis, Ph.D., complained to the FTC that the brochure deceived by exaggerating what chiropractors can do and by asserting that chiropractic’s basic (subluxation) theory is valid [5]. Jarvis’s letter was accompanied by a detailed critique and other documents that I believe placed the matter in proper perspective. I am not aware of any FTC response to the letter.

FTC Advisory Opinions

Between 1984 and 1992, the FTC staff gave opinions to state legislators or regulatory agencies in five states that were trying to improve their regulation of chiropractic advertising.

  • In North Carolina, the FTC expressed concern about proposed changes to the North Carolina Chiropractic Association’s code of ethics that would characterize several types of behavior was “unprofessional conduct.” The association wanted to ban or restrict advertising of free x-rays, coupon advertising, waivers of insurance deductibles, charging insured patients more than uninsured patients, and giving discounts for cash payment [7]
  • In New Mexico, the FTC supported a proposed plan to repeal the chiropractic licensing board’s rules against ads that claim superiority, offer “free” services, or contain “sensational or fabulous statements.” The FTC said it would be better to simply ban advertising that is misleading or deceptive [7].
  • In Idaho, it expressed concern about a proposed broad restriction on advertising that “is likely to appeal primarily to the fears, ignorance or anxieties of lay persons regarding their health or physical well-being” because it might inhibit dissemination of truthful information about valid health concerns [8].
  • In South Carolina, the FTC cautioned the Legislation Audit Council against any restriction of solicitations that might decrease competition [9].
  • In Missouri, the FTC expressed concern about a proposed regulation of offers of “free” and “discounted” service. The proposed regulation was intended to prevent “bait and switch” advertising where a “free” offer is used to enroll the patient into other paid services during the same visit. Although the FTC admitted that it had no idea how prevalent this problem is, it cautioned that too much restriction could discourage discounts and dampening competition [10].

Overall, the FTC letters showed little or no understanding of the chiropractic marketplace. “Free” chiropractic offerings, “discounts,” and insurance co-payment waivers do not lead to lower prices in a community. They are merely bait by chiropractors who seek to enroll patients into expensive contracts for unnecessary care [11]. But all the FTC seems to have cared about was the possibility that curbing them might decrease competition.

FTC Enforcement Actions

In three cases, FTC took enforcement action related to chiropractors, but none of these involved challenges to chiropractic claims. One limited a state board’s ability to restrict presumably truthful advertising, and the other two attacked anti-competitive activity.

  • In 1992, the FTC obtained a consent order under which the Texas Board of Chiropractic Examiners may not prohibit chiropractors from engaging in truthful, non-deceptive, advertising or solicitation. The order does not affect the Board’s authority to prohibit advertising that is likely to deceive or mislead the public. Nor does it affect the Board’s authority to prohibit (a) the advertising of professional superiority (b) the advertising of the performance of professional services in a superior manner, or (c) uninvited, in-person solicitation of actual or potential patients who because of their particular circumstances are vulnerable to undue influence [12].
  • In 2000, the Wisconsin Chiropractic Association and its executive director agreed to settle charges that they orchestrated a conspiracy among WCA members to increase prices for chiropractic services and to boycott third-party payers to obtain higher reimbursement rates. The settlement would prohibit them from fixing prices for any chiropractic goods or services, or the terms of third-party payer contracts. In a parallel case, two Wisconsin chiropractors agreed to settle charges that they had conspired to fix prices for chiropractic services and to boycott the Gundersen Lutheran Health Plan to obtain higher reimbursement for chiropractic services in and around La Crosse, Wisconsin. The settlement prohibited the chiropractors from fixing prices and from orchestrating concerted refusals to deal [13].
  • In 2008, the Connecticut Chiropractic Association (CCA), the Connecticut Chiropractic Council, and the CCA’s attorney agreed to settle charges that they had unreasonably restrained competition in violation of Section 5 of the FTC Act. The FTC’s complaint alleged that the parties had conspired through a campaign of meetings and other communications to encourage and facilitate a collective refusal to deal with American Specialty Health (ASH) in order to prevent ASH from providing its cost-saving chiropractic benefits administration program in Connecticut. The FTC charged that the challenged conduct had no legal justification and was a naked boycott among competitors and violated antitrust laws. The settlement prohibits the parties from entering into or facilitating, any agreement among chiropractors: (a) to negotiate with payers on any chiropractor’s behalf; (b) to deal, not to deal, or threaten not to deal with payers; or (c) on what terms to deal with payers [14-17].
The Koren Case

The only case I know in which the FTC challenged chiropractic claims involved Koren Publications, a Pennsylvania-based firm that sells subluxation-based pamphlets and other practice-building aids. The FTC itself made no public statement, but fund-raising appeals from company president Tedd Koren, D.C. and articles in chiropractic publications described what happened [18,19]. A report in Dynamic Chiropractic (a chiropractic newspaper) stated that (a) in January 1995, an FTC attorney sent Koren a letter expressing concern about 21 statements or “representations” made in several of his brochures; (b) in 1997, Koren signed an agreement to modify some of his brochures; (c) the FTC rejected the agreement; and (d) the original FTC attorney retired and was replaced by another attorney who proposed a broader agreement that would prohibit Koren from making any unsubstantiated claim that chiropractic:

  • improves human immunocompetence
  • reduces the incidence of ear infection, allergies, or tonsillitis in children
  • administered to children, is effective in the treatment or amelioration of asthma, anxiety, low-mental stamina, inability to concentrate, hyperactivity, discipline problems, low grades, or low IQ
  • is comparable or superior in effectiveness to vaccinations as a means of preventing common childhood diseases, including measles, mumps, German measles, and chicken pox
  • administered to children. increases their resistance to common childhood diseases, including measles, mumps, German measles, and chicken pox [18]

The Dynamic Chiropractic article stated that the proposed agreement would also have prohibited any unsubstantiated representation “about the health benefits, performance, or efficacy of chiropractic, or any substantially similar treatment.” An account in Reason Magazine stated that the FTC commissioners wanted to require Koren to send every chiropractor who had ever bought one of his pamphlets a copy of the consent order and a letter saying, “The FTC has advised that if you disseminate advertising or promotional materials containing [false claims], you could be subject to an enforcement action.” [20]

In 2001, Dynamic Chiropractic announced that the FTC had closed its investigation without taking any enforcement action. The article, apparently quoting Koren’s attorneys, stated:

The theory of the FTC attorneys was that while it was true that any author could write about the dangers of vaccination, the usefulness of pediatric chiropractic, and the latest information about medical clinical trials, the fact that Dr. Koren was a doctor of chiropractic meant that his writing faced a higher standard of review than the writings of nonprofessional, medically unlicensed journalists. This, in the view of Dr. Koren’s attorneys, simply couldn’t be, and was not the law.

FTC lawyers told Dr. Koren and his lawyers that the only safe information a chiropractor could give under their theory was on low back pain, and that writing about the dangers of vaccination “terrorized” American families. Dr. Koren’s lawyers stated that this approach placed unsupportable limits on the rights of health professionals to write and speak [21].

Why did the FTC drop its case against Koren? It is not unusual for the FTC to close cases when the company agrees to change what it is doing. Koren did change some of the things to which the FTC reportedly objected. There might also have been concern that the Koren’s publications were protected by the First Amendment. Even if that was the reason, the First Amendment would not protect chiropractors who are advertising to solicit patients.

Jurisdiction Exists

The Federal Trade Commission Act prohibits unfair or deceptive advertising of products or services in any medium. To fall within federal jurisdiction, the advertisement must affect interstate commerce. The courts have repeatedly found health-care businesses to be subject to regulation as interstate commerce. The U.S. Supreme Court has ruled that the constitutional definition of interstate commerce is very broad: anything that moves between the states, or any business that uses raw materials that come from out of state are considered interstate commerce. Although the delivery of health-care services to individual patients is a local activity, everything that the practitioners use, most equipment and office supplies, comes from other states, and in many practices, patients cross state lines to get to practitioner’s office. Information that crosses state lines also falls within the definition of interstate commerce and certainly influences it. Even if the FTC lacked jurisdiction in the early 1970s, it certainly has it now [4].

Ads That Merit Major Regulatory Attention

The following claims deserve major regulatory attention because they are widespread, false, and potentially dangerous:

  • Vertebral subluxations are a major or underlying cause of many health problems
  • Spinal manipulation can improve general health
  • Spinal adjustments are effective against a broad range of diseases
  • Spinal adjustments are effective against pediatric problems such as earaches, autism, and asthma
  • Chiropractic treatment can prevent spinal degeneration

The FTC can ask for substantiation, issue warning letters, publish educational material, and/or file formal complaints against violators. Internet advertising claims provide an obvious target. If you see misleading chiropractic claims on a chiropractic Web site,
please report them through the FTC Complaint Assistant.

References
  1. Thain GJ. Letter to U.S. Representative Fred B. Rooney, Oct 25, 1973.
  2. Rooney FB. Letter to Gerald J. Thain, Nov 1, 1973.
  3. Huber RA. Letter to Dr. Stephen Barrett, Aug 18, 1972
  4. Federal Trade Commission Act, incorporating U.S. SAFE WEB Act amendments of 2006. FTC Web site, May 8, 2019.
  5. Jarvis WT. Letter to Walter Gross, July 1, 1988.
  6. Hilder ER. Letter to Colin M. Haynie, D.C. Jan 29, 1984.
  7. Mosley J. Letter to David A. Garcia. Jan 7, 1987.
  8. Zweibel GJ. Letter to Dorothy Hodgson. Dec 7, 1987.
  9. Wise MO. Letter to George L. Schroeder. Feb 16, 1992.
  10. Baker CS. Letter to Kay E. Gunter. Dec 11, 1992.
  11. Barrett S. Don’t pay or contract in advance for chiropractic visits at a “discount” price. Chirobase, March 2, 2016.
  12. Consent order. In the matter of the Texas Board of Chiropractic Examiners. April 21, 1992.
  13. Wisconsin Chiropractic Association and its executive director agree to settle FTC charges of price-fixing: Related settlement with two La Crosse chiropractors resolving allegations of price-fixing and organizing boycott of local managed care plan. FTC news release, March 7, 2000.
  14. FTC challenges illegal boycott of health plan by Connecticut chiropractors: Chiropractors must modify behavior to protect competition. FTC news release, March 5, 2008.
  15. Complaint. In the matter of the Connecticut Chiropractic Association, the Connecticut Chiropractic Council, and Robert L. Hirtle, Esq., Before Federal Trade Commission, Docket No. C-04217, March, 2008.
  16. Agreement containing consent order to cease and desist. FTC File No. 0710074, March 2008.
  17. Decision and order. FTC File No. 0710074, April 2008.
  18. FTC questions Koren’s claims. Is Koren Publications just the beginning? Dynamic Chiropractic, Sept 21, 1998, pp 1,17,42,49.
  19. FTC fight: The muzzling and gagging of chiropractic. Chiropractic Wellness: The Practice Building Journal from Koren Publications. Volume 1, 1998-1999, back cover. Distributed October 1998.
  20. Doherty B. Masters of manipulation. Reason, March 1998.
  21. Feds drop Dr. Koren’s case: First amendment rights of health care professionals were at stake. Dynamic Chiropractic, Aug 2001.

This article was revised on May 8, 2019.