Saturday, August 03, 2019

false advertising trolling, consumer protection, or both

I wrote about a couple of cases filed by a supplement maker, Outlaw, against retailers that sold allegedly unlawful “male enhancement” supplements that the FDA has issued warnings on—sometimes the “supplements” illegally contain pharmaceuticals like sildenafil (active ingredient in Viagra).  Vice made a short film about the cases, highly sympathetic to the small business defendants.  My reaction is decidedly more mixed.  On the one hand, Outlaw’s tactics suggest a kind of false advertising trolling—threatening a lot of small businesses and trying to get payouts from them.  On the other, Outlaw points out that the manufacturers of these supplements are shady and hard to find, meaning that it’s not particularly easy to go after them (and, not for nothing, that the retailers are themselves being rather careless about what they stock—carrying Tiger Male Enhancement pills is really not the same thing as carrying Diet Coke).  The film points out that these products are often made with identical packaging but filled with different substances by different people, so sometimes you get sildenafil and sometimes you get random non-drug substances.  This certainly does make it difficult to show that the stuff sold at any given bodega had pharmaceuticals in it, but at the same time it makes the falsity of the advertising, and the danger to consumers, even more clear.  Ultimately, it’s far easier to conclude that Outlaw’s enforcement model is a bad one than that these small businesses should be left alone to sell whatever they can get consumers to buy.

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