The Power of Numbers to Deceive

Large numbers are impressive, so people often fail to put them into perspective. That’s why advertisers and advocates love to use them to get more sales or to garner support for a cause. Examples pop up daily, especially in this age of COVID-19.

 

Every day the local and national news media blast out the latest coronavirus totals. Millions of cases and over one quarter million deaths get our attention. In fact, relative to other causes they are very big numbers. It is a serious problem, but no one reminds us that 15 million is less than five percent of the population. Furthermore, I have never heard a news organization report on the number of people who have recovered. It’s sure to also be in the millions. It seems that people come out on two extremes: they either don’t take it seriously enough or they are unnecessarily terrified of catching it and dying. Perhaps if the news gave a more honest, measured account, more people would have an appropriately moderate reaction.

 

I found another example in a health report. “The Federal Trade Commission is sending 70,142 checks and PayPal payments totaling $3,864,824 to consumers nationwide who bought Quell, a wearable device that supposedly would treat chronic pain throughout the body when placed below the knee.” The company was fined almost $4 million for misrepresenting their product! Consumers who were gullible enough to buy the product will be reimbursed. That’s about $55.10 each for a device that is advertised on sale for $99 – not exactly a money-back guarantee – but the $4 million fine seems impressive.

 

Class action lawsuits are also typical. Chipotle, accused of falsely advertising its food as GMO-free, settled for $6.5 million. After the lawyers took 30%, that left their customers with a claim of $2 per meal with a cap of $30 per household, but it “could be less than this depending on how many claims are made.” Again a big number reduced to peanuts per person.

 

Similarly Johnson & Johnson, a favorite target for lawsuits, was ordered to Pay $6.3 million in the Infant’s Tylenol Settlement. That came out to $2.15 a bottle.

 

The number of home burglaries in 2018 was 685,766, about half of total burglaries (1,230,149), and about half of those happened when people didn’t lock their doors. But when buying a home security system you will hear, “A burglary happens once every 26 seconds.”

When big numbers are spread across many people, it doesn’t add up to very much.

 

In some cases, the news media implies big numbers just in their tone. A couple of years ago they wanted us to believe that school shootings were common, but what happened to school shooting news when the presidential campaigns got into full swing? The problem didn’t go away, but the news did. 

 

According to Education Week, twenty-five incidents occurred on school grounds or during school-sponsored events resulting in five student deaths, only one under the age of 14. Any such deaths are tragic, but that’s five out of 56.4 million students. Should anyone panic over such minuscule probability?

Headlines about these extremely rare events like shark attacks are easy to ignore, but when kids are involved, it’s different. Parents are terrified at the prospect of their child being abducted. Nosey neighbors report them for letting kids walk alone and authorities respond. An elementary school in South Carolina won’t let the kids whose mother wants them to walk home, leave school without an adult. “Today, only 10% of American kids walk to school, down from about 50% in 1969.” 

Reuters tries to assure parents: “Kidnapped children make headlines, but abduction is rare….On average, fewer than 350 people under the age of 21 have been abducted by strangers in the United States per year since 2010.” Then Parents.com tells them, “Every 40 seconds in the United States, a child becomes missing or is abducted.” But they don't tell them that 0.1% are abducted by strangers, over 95% simply ran away and 99.8% are later found alive. 

 

It’s an endless battle against the media, politicians and charities selling products or ideas and raising  funds using big numbers. The best defense is perspective.

Flashback – Consumer Protection Gone Crazy

Back in 2011 I explained how new legislation regarding credit cards led to the companies increasing fees and interest rates. More recently, about a year ago, I once again emphasized how well intentioned consumer protection laws often have unintended consequences. Here is that entry from August 23 of last year.

[Last time I wrote about a lawmaker introducing a bill to protect Americans from Internet addiction, a condition that has no formal definition or diagnosis. Whenever a problem or “epidemic” arises, someone in power decides that there is a government solution to change the conditions or behavior. (Even when the government was the source of the problem.)

People are not trusted to solve their own problems, often because they don't. In the end everyone loses some freedom because of the bad decisions of a few. It takes critical thinking to identify the root of the problem and personal responsibility to own the solution instead of passing it off to a higher power.

This dynamic was reinforced a few days ago when a package arrived from one of those catalogs that frequently appear in the mailbox. In the package was a gift pen, similar to those used by various companies as promotional items. It was an ordinary retractable ballpoint similar to those from a dentist’s office or a job fair but with one difference. It came in a plastic sleeve with the words, “WARNING: Cancer and Reproductive Harm” followed by a web address.

The address led to the California Proposition 65 page. “The California Office of Environmental Health Hazard Assessment is establishing this website to provide the public with information on chemicals, products and locations often associated with Proposition 65 warnings.  These warnings inform Californians about their exposures to chemicals that cause cancer, birth defects or other reproductive harm.” 

Notice that the above statement reads, “cause cancer” not “may cause cancer,” implying that they have studies to definitively prove a direct causal link. Since the list includes over 900 chemicals, that is a doubtful assertion. Looking at one random example: “The International Agency for Research on Cancer (IARC) lists coconut oil diethanolamine condensate (cocamide DEA) as an IARC Group 2B carcinogen, which identifies this chemical as possibly carcinogenic to humans."[Emphasis added] Apparently it only takes possibly to make the list. 

The full list includes a large number of arcane-sounding chemicals, e.g., Amikacin Sulfate and Zalcitabine, but it also includes alcoholic beverages, aspirin, tobacco smoke, nicotine and oral contraceptives.  

How helpful is this? Is tobacco smoke or nicotine a surprise? Why do Californians need the information and not everyone else? Coffee contains acrylamide, which is on the list, so last year a judge decided, "coffee sellers in the state should have to post cancer warnings.” But in “2016, the cancer agency of the World Health Organization moved coffee off its ‘possible carcinogen’ list.”

This isn’t science; it’s judges and lawmakers deciding what should or should not be on a list. It’s “The Boy Who Cried Wolf” gone crazy. People don’t have time to be careful about 900 chemicals and all the products they go into. I have no idea which part of the promotional pen I should worry about or how it might hurt me. Tanning beds and sunlight are not on the list only because they are not chemicals. The situation is so bad that my seven-year-old granddaughter upon returning from a vacation in San Diego commented about how silly it was seeing all the warning signs everywhere coffee was sold.

Not only is this not helpful, it adds cost. The extra warning labels and signs cost money. It is costly to reformulate products to avoid having to post warnings, or worse, to avoid the threat from lawyers, “some of whose businesses are built entirely on filing Proposition 65 lawsuits” on behalf of “straw man plaintiffs." The cost of these nuisance consequences comes back on all of us. (Economic understanding reminds us there is no magic money tree to make up the difference. It all gets passed along to the end consumer.)

Does the list ever shrink or become reasonable, or do we get to the point where everything needs a progressively more meaningless label? I’m sure many people thought this was a great idea back in 1986 not realizing that they may be creating a monster.]

Flashback – Baby Powder

Almost exactly four years ago I wrote about the difference between how the legal system looks at the danger of baby powder vs. how science sees it. Of course, that makes no difference, as just this week I saw another class action lawsuit ad on TV. When it comes to taking money from big rich companies and giving it to poor victims (and their lawyers) juries don’t care about science. They just want to use someone else’s money to dry the tears.

But they still expect the same company to continue to make the Tylenol for their headaches while testing and producing a COVID-19 vaccine. It’s all part of some weird love/hate relationship.

From September 2016: "How Baby Powder Can Harm You?"

[Under the heading of Health, the Fox News headline read: “Research finds talc doesn't cause cancer; juries disagree.” The story tells that two juries awarded a total of $127 million dollars to two women claiming that the Johnson & Johnson baby powder gave them ovarian cancer. A second judge threw out two cases, saying there was no reliable evidence; but another 2000 women have already lined up to sue.

That’s the legal side. What does science say? “Most research finds no link or a weak one between ovarian cancer and using baby powder for feminine hygiene, a practice generations of American mothers have passed on to their daughters. Most major health groups have declared talc harmless.” The rest of the article gives more information about the research and the trials. Here is another conflict between science and the legal process, but that should come as no surprise in light of jury awards given years ago for silicon breast implants when the implants were later found to be safe.

It is very easy to understand how a jury could ignore science and award millions of dollars to a woman with ovarian cancer. They do it out of sympathy, and they do it because they can. To do otherwise seems cold and heartless.  It’s not their money and the company has plenty of money. What’s a few million dollars in the grand scheme of things when it can bring comfort?

What person would stand by and see a toddler fall and skin her knee and not immediately run over to pick her up, dust her off and give her some comfort? It is the human thing to do.

There are several similarities between the one who helps the fallen toddler and the juries who award large sums. It costs them nothing. It gives comfort to the afflicted, although it does nothing to cure the cancer or heal the skinned knee. And it makes the rescuers feel good about themselves.

There are, however a few key differences. When you comfort the toddler it truly costs you nothing, and other toddlers don’t look at the one who fell and line up to also fall down to get sympathy. (Some may independently discover that falling down is an easy way to get attention, and some of them probably grow up to be trial lawyers.)

Also, when a toddler gets sympathy, the costs of that sympathy are not spread to the rest of society.  When a jury finds for the plaintiff in this case, not only does the company (or insurance company) pay, but every other company in that industry is put on notice. They are at risk of losing a large judgment for one of their products that has been on the market for years with no ill effects. They don’t spend the money now, but must keep some in reserve to protect against such a contingency.

Likewise, all insurance companies, seeing that evidence means nothing to some juries, must save for similar outcomes. The companies making personal products slowly raise their prices to adjust for this, and the insurance companies raise their rates to cover the increased risk. This sympathetic redistribution, which is really what it is, ends up costing everyone in society. 

What’s worse is that this activity adds no value. It does not add to the GDP. It does nothing to increase the standard of living for anyone except the few women who win in court (and their lawyers – Remember personal injury lawyers are not paid for justice; they are only paid for winning.)

In the end what can Johnson & Johnson do (besides spend a lot more time and money appealing each decision)? What lesson could they learn? Should they get everyone who buys baby powder to sign a hold-harmless agreement? Why are they more at fault than the “generations of American mothers” referred to in the article? They made a product considered safe for years and suddenly they are on the hook for $127 million; and if the ratios hold true and half the next 2000 win similar amounts, it could be $127 billion! It’s “jackpot justice,” and the cost of all the winning “lottery tickets” is spread among the rest of us, including the people who served on those juries!

So how can baby powder harm you? It harms you in the same way other wasteful legal actions harm you. It takes money out of deep pockets to compensate “victims,” but the costs ultimately come back to each of us, with nothing to show for it but richer lawyers, and juries who, in some misguided way, temporarily feel satisfied that they did something to help.]

Life Is Tough.

From ABC news: “Two men who believe they were switched at birth nearly 80 years ago are suing a Roman Catholic diocese in West Virginia, alleging negligence and breach of duty by the hospital where they were born.”

One of the men discovered through a DNA test that he was not related to people he thought were his family. He learned the identity of the other man and found his “real” family by searching hospital records from 1942. Together the two are suing. They claim to have “suffered a ‘lifetime of consequences’ from the switch and are seeking unspecified damages.” 

One of the men has blue eyes and says he “looks different from the family that raised him and always felt out of place.”

This falls into the category of news that is hard to distinguish from satire. Have these people really suffered over the past 78 years because they were not blood relatives of the people who raised them? Would there have been any distress had he not uncovered the facts? Does not looking like the rest of your family lead to psychological damage? Finally, what do these claims say about adopted children?

According to Wikipedia, a parent is “a caregiver of the offspring in their own species. The most common types of parents are mothers, fathers, stepparents, and grandparents.” Including stepparents extends family relationships to beyond blood relatives and to people the children may not look like.

Furthermore, since both sets of parents were ignorant of the error, there would have been no reason for them to treat the “switched” sons any differently. It’s hard to imagine what damage was done.

An adoption website points out that there are “hundreds of thousands of adoptive families in the world who all represent wonderful families….” Chances are most of these children don’t look like their parents or siblings either, but they are members of the family. 

From another source: “Adoptive families can be transracial, international, or have members of the same family from different parts of the country.  Adoptive families look different. Adoptive families are beautiful!  They are a picture of what happens when one part of the human race decides to care for another human being.” 

To most of us, family means more than a blood relationship, but rather a source of love and support.

But these concepts are not good enough for the two and their lawyers. Like many Americans they believe life is tough, and those who suffer from the most trivial problems or minor irritations deserve sympathy and compensation whenever possible. Look at the emotional support animal industry (not to be confused with service animals).

Yes, it is an industry. There are websites that offer, for a fee, certificates and vests to meet an "epidemic" demand for support animals. Technically only mental health professionals can provide documentation.  Some sites skirt the issue by employing counselors to do a quick interview or review a questionnaire. Still the person not the animal’s behavior is evaluated, and counselors would not be qualified to do so. That places thousands of untrained, unpredictable animals in public with presumed special privileges, although the certification only allows the pet on an airplane or in housing that forbids animals. It is not blanket permission to take the animal anywhere.

The government accommodates these people with special laws without scientific evidence. Wikipedia reveals, “Researchers have not established that untrained emotional support animals provide any significant benefit to people with mental or emotional disabilities…the scientific research is limited and of low scientific quality.” 

See the parallel? This lawsuit is not an isolated incident. It’s a reflection of the times. These two elderly gentlemen claim to have suffered consequences all their lives. No one dares ask why they failed to take charge at some point over 60 years of their adult lives. We have no expectations of responsibility from victims. They suffer a wrong and seek (monetary) relief 78 years later. Like the growing number that require emotional support animals, they are comforted rather than confronted. And life goes on.

People act like victims. They need and expect to get their settlements, their furry crutches or whatever without question. Anyone critical is branded as unfeeling.

Two hundred years ago they’d all be dead. At one time life was tough, and you had to be tougher just to survive. Today life is significantly (significantly!) easier, but it’s also easier to play the victim and complain rather than to be responsible in taking on life’s challenges. Doing so is hard and might even lead to personal growth and maturity, but don't expect the government or society to take that view!

Flashback – Freedom and Responsibility

[What results from a lack of responsibility is often deceptive. No one gets hurt, and any important job usually gets done. When an individual fails to take care of it, someone else takes up the slack by doing it for them. The so-called helicopter parents fit into this category. But what happens when this behavior occurs on a societal level? – The helicopter government steps in with programs and regulations, and we give up our freedom one step at a time. It's true both for citizens and for corporations.

I reminded everyone of this consequence back in July 2011.]

Some think the opposite of freedom is slavery or perhaps living under a dictatorship, but in our society the opposite of freedom is the benevolent authoritarianism of warnings and legal restrictions resulting from our failures in the dimension of responsibility.

We are told that we are all victims of the economy, of our high-stress jobs, and of our non-stop lifestyles. The word is used in ads everyday, one even asking me if I am the victim of hair loss. We are presumably victims of big oil when gasoline prices rise, of big drug companies, or of big insurance companies when they raise their rates or dispute our claims. 

Especially in legal cases involving civil suits, attorneys first persuade prospective clients that they are victims (you’ve seen the ads on TV) then persuade juries that their clients are victims and someone should pay. In those same TV ads you often hear the word settlement, because the targets of these lawsuits fear that juries will buy into this point of view. It's cheaper to settle out of court, because those juries, from a basic lack of economic understanding, assume that a big corporation or insurance company will pay the cost out of their own pocket and it will never get back to us.

Claiming victimhood is an easy answer. It takes no effort. What went wrong is someone else’s fault; we are not to blame; we share none of the responsibility. It’s a passive stance. I don’t have a high-paying job, not because I didn’t bother to finish high school, but because I am being discriminated against. I got lung cancer not because I refused to quit smoking, but because the tobacco companies tricked me. My kids have too many toys not because I bought them, but because of the cartoons on the TV. The banks fooled me into getting a mortgage I couldn’t afford. When I have a sore knee, I ask the doctor for a pill or for surgery rather than losing some weight. I get to put all my problems in someone else’s hands. Responsible people don’t act like this, but victims do.

When we feel and act this way, we need to be protected. That’s when the warnings and regulations begin. Since these people can’t take care of themselves, we must require warnings on cigarette packages, on ladders, on hairdryers, and on almost every other product, telling them not to use them in ways that may seem stupid to the average person. When we sign up our kids to play sports, we must sign “hold harmless” forms. All the warnings don’t stop the lawsuits, so next come the regulations: all playgrounds must provide soft landings, all car trunks need an escape handle, all lawnmowers must have an automatic shutdown device, etc. Some cities ban the sale of certain foods or of fast food in certain neighborhoods. Victims are treated like children and must be protected from the real world and from themselves.

Where does it all end? The old analogy of boiling a frog applies. Throw a frog into boiling water and he jumps back out. Put him into a pot and slowly increase the temperature and he sits complacently until it’s too late. Likewise, when we don’t behave responsibly, our freedoms slowly trickle away.  Each of those efforts seems well-meaning and harmless at the time, but each is another example of someone restricting our choices for their interpretation of our own good. Each restriction is a loss of freedom, the consequence of patterns of behavior that show weaknesses in the dimension of responsibility.

Puzzling Mail

I got some strange mail earlier in the week. It was a small postcard apparently from a group of lawyers telling me that I could be reimbursed if I bought towels made by a company called Welspun between the beginning of 2012 and last July, approximately seven and a half years. 

As I looked into it, just out of curiosity, I discovered that Welspun Group is a multinational company founded in India in 1985. It does business in over 50 countries in steel, energy, and textiles, employing about 24,000 people. 

The reason for the settlement is that they have been accused of fraud. According to Fortune, “an internal investigation revealed it misrepresented its 100% Egyptian cotton sheets.” When this came to light, several retailers including Target, Wal-Mart, Bed Bath and Beyond and J.C. Penney either had or was considering severing ties with the company. In addition, two class action lawsuits had been filed.

The postcard must have proceeded from one or both of those lawsuits. It says that the company has set aside $36 million to pay “Valid Claims.” If I have a proof of purchase, I “may receive up to $2.30 for Subject Product towels and pillowcases and up to $9.20” for all other products. Subject products are those labeled as “Egyptian Cotton” or “Pima Cotton.” If I don’t have a proof of purchase, the payments are cut in half.

Again according to the September 2016 Fortune article, “Welspun has committed to implementing new labeling practices.” Furthermore, their website boasts of many quality awards in 2018. So why does the Class Period last until July 2019? I don’t have a clue. The company has also been ordered to clean up their marketing and labeling practices.

Welspun financials show over $100 million net profit in the last 6 months reported, so the settlement shouldn’t be devastating.

After going through all that, I wondered who has really been harmed and what is the value of this entire exercise. Consumer fraud is a bad thing. Ordinarily some government agency would send out warnings or apply fines and require the company to straighten out their practices. In serious cases, some people might go to jail. But does forcing the company to provide the funds so that an administrator can reimburse customers with seven-year-old receipts $2.30 per towel make any sense at all?

 A quick shopping trip on Amazon reveals that 4-packs of 27x54 Egyptian cotton towels are on sale for $43 (regular price $60). A 4-pack of comparable 27x54 luxury towels with the same GSM (grams per square meter) sells for $28. Someone who may or may not be able to tell the difference could have paid $3.75 too much per towel. They now can reclaim some of the difference thanks to $9 million worth of attorney work. The situation is probably the same for sheets.

The whole thing leaves me wondering how expecting Egyptian cotton and getting some other kind of cotton in one’s sheets and towels can mean enough to go through all this trouble. If a company commits fraud, either intentionally or unintentionally, it should be fixed and possibly punished. In large matters consumers ought to be made whole, but for sheets and towels? – Where is the perspective?

Can You Trust Your Pharmacy?

A recurring comment in the script of an episode of an old TV Western (Maverick, 1958) was the line, “If you can’t trust your banker, who can you trust?” The modern day equivalent of that could well be, “If you can’t trust your pharmacy?” This is nothing against the pharmacists, who studied hard to be licensed. There is no evidence of them not giving accurate advice. The displays in the store itself along with some other corporate and industry practices, on the other hand, can and do imply things that aren’t true. Two recent news items act as a good reminder.

The first is about an on-line survey of 1000 Americans published in August, sponsored by the Center for Inquiry (CFI) and conducted by Lake Research Partners. The survey centered on people’s general trust in their pharmacy at Wal-Mart and CVS, and more specifically their feelings regarding homeopathic medicines at those pharmacies.

They chose these pharmacies because both corporations face a lawsuit over their practice of selling homeopathic medicine side by side with science-based remedies. CFI believes it is deceptive to imply that they are as effective as regular OTC cough, cold and other remedies, when they have “no medical benefits beyond that of a placebo.”

There is, in fact, broad agreement on this point. “After a thorough and extensive review of over 200 research papers on the subject, the National Health and Medical Research Council (NHMRC) [of Australia concluded in 2015]:  “There are no health conditions for which there is reliable evidence that homeopathy is effective.” (For a thorough explanation of homeopathic medicines click the link.)

That survey of Wal-Mart and CVS customers asked them about how they make their purchasing decisions for cough, cold, and flu remedies at the two stores “and about their general knowledge of the basic principles of homeopathy, an 18th-century pseudoscience that has been utterly disproven.” The survey showed that exposure to this new information about the failures of homeopathy in so many independent studies led consumers to have to negative feelings about the products and the companies selling them. More than 4 in 10, “described their feelings about the purchase of a homeopathic remedy in deeply negative” terms.

Remember, one of the companies, CVS, still talks about how proud they are of the decision to discontinue tobacco products five years ago and believe it shows their concern about the health of their customers. Tobacco sales were profitable, but ultimately stood in the way of them being considered “a trusted health care provider.” According to their CEO, they strive to be in the same class of business values as TOMS shoes (which donates shoes to African countries providing unfair competition to African small businesses trying to survive by selling shoes – but that kind of unintended consequence is a topic for a different time). If they value their reputation for being a healthcare resource, one would think they would be as concerned about the accurate representation of their products.

But if you can’t trust your pharmacy about the product displays, what about the prices?

That leads to the second news item. A lawsuit filed in August by PharmacyChecker.com accuses “The National Association of Boards of Pharmacy (NABP), LegitScript, and three Pharma front groups [of] operating a coordinated campaign to suppress market competition, artificially inflate the price of prescription drugs, and spread misinformation to scare consumers away from international online pharmacies.” 

PharmacyChecker.com verifies the reliability of international online pharmacies and compares their drug prices to allow consumers to be confident about their on-line purchases and to inject competition into the prescription drug market. They allege in the lawsuit that those organizations have conspired with Google, Microsoft and others to lower their page on search results and in some cases to display a warning box when the page is opened.

Companies and industries do many things to protect their business and to make a profit. Consumers have to do many things to protect themselves. Mostly it involves research and critical thinking, especially when health and healthcare costs are concerned.

Rewards for Not Paying Attention

Should people be rewarded for not paying attention or for pretending they didn’t know about dangers that have been well publicized to the point that they are common knowledge? 

First, a less dire example of well-known information: a study hitting the Internet and the airways recently revealed that “Washing your hands under running water may be a better way to stop the spread of infections than using a hand sanitizer.” The hand sanitizer can be nearly as effective as washing hands for removing flu viruses, provided both are done properly. It just takes longer.

In laboratory experiments “it took about 30 seconds for the sanitizer to eliminate all the flu virus in the saline samples, but more than 4 minutes for the sanitizer to get rid of flu in the mucus samples.” From the lab tests they moved to a more real-life situation by putting mucus directly on people’s fingertips. When it was given time to dry (for 40 minutes), the hand sanitizer killed the flu virus within 30 seconds. But in a more realistic situation where the mucus was still moist, it took about 4 minutes of rubbing for the flu virus to be completely eliminated.

Proper hand washing removed traces of the virus in both cases in about 30 seconds, whether the participants used soap or not. The benefit is not from the soap, but from the rubbing under running water. 

No one is likely to rub the hand sanitizer for 4 minutes or alternatively to let their hands dry after sneezing for 40 minutes, but neither do many people spend half a minute scrubbing under running water. When a sink is not available the alcohol is a good option. 

That’s what we know today, but we had substantially the same information 10 years ago. From Live Science in October 2009: “Hand washing with ordinary soap and water is the most effective way to remove germs. But when you're on the go, alcohol-based hand sanitizers are tremendously effective in preventing the spread of the seasonal flu.” They gave 20 seconds for washing and 15 for the sanitizer, so the latest study just worked a little on the details. It wasn’t really news.

This is just one everyday example of how the media likes to present old news as some brand new revelation wrapped in the cloak of the latest study.

In light of that consider the opioid epidemic. Within the last two weeks, “OxyContin maker Purdue Pharma LP filed for bankruptcy protection…succumbing to pressure from more than 2,600 lawsuits alleging the company helped fuel the deadly U.S. opioid epidemic.” Nearly every state, numerous cities and counties and many others insist that the company “aggressively marketed prescription painkillers while misleading doctors and patients about their addiction and overdose risks.”

Any money awarded will not bring back even one of the 400,000 lives lost between 1999 and 2017, but the various levels of government hope to be able to confiscate money from drug company profits to remedy the situation rather than taking from tax payers.

My question is: what are they going to do with this money? Treatment is no doubt an option. Perhaps they will fund stocks of Naloxone (sometimes sold under the brand name Narcan). 

Of course, awareness will surely be part of the plan. But with the opioid epidemic in the news daily, with current Public Service Announcements and with the subject sure to come up in the upcoming presidential campaigns, what more can they do to get the word out? The company may have been playing fast and loose with the truth in the past, but now their website clearly states, “OXYCONTIN® exposes patients and other users to the risks of opioid addiction, abuse, and misuse, which can lead to overdose and death.” 

With so much information available, should compensation be available to everyone who becomes addicted from now on? At what point does society expect people to recognize and deal with the danger? In the case of cigarettes it has taken decades – people are still suing tobacco companies over risks that have been widely known for 50 years or more, but they claim to be victims. 

If risky or irresponsible behavior continues to be rewarded even well after the risks are known, problems will never be solved.

Consumer Protection Gone Crazy

Last time I wrote about a lawmaker introducing a bill to protect Americans from Internet addiction, a condition that has no formal definition or diagnosis. Whenever a problem or “epidemic” arises, someone in power decides that there is a government solution to change the conditions or behavior. (Even when the government was the original source of the problem.)

People are not trusted to solve their own problems, in part because often they do not. In the end everyone gives up some free choices because a few of us made some bad decisions. It’s about critical thinking to identify the root of the problem and personal responsibility to own the solution, instead of passing it off to a higher power.

This dynamic was reinforced a few days ago when a package arrived in the mail. It was an order from one of those catalogs that frequently appear in the mailbox. In the package was a gift pen, similar to those used by various companies as a promotional item. It was an ordinary retractable ballpoint similar to those in a dentist’s office or at a job fair but with one difference. It came in a plastic sleeve with the words, “WARNING: Cancer and Reproductive Harm” followed by a web address.

The address led to the California Proposition 65 page. “The California Office of Environmental Health Hazard Assessment is establishing this website to provide the public with information on chemicals, products and locations often associated with Proposition 65 warnings.  These warnings inform Californians about their exposures to chemicals that cause cancer, birth defects or other reproductive harm.” 

Notice that the above statement reads, “cause cancer” not “may cause cancer,” implying that they have studies to definitively prove a direct causal link. Since the list includes over 900 chemicals, that is a doubtful assertion. Looking at one random example: “The International Agency for Research on Cancer (IARC) lists coconut oil diethanolamine condensate (cocamide DEA) as an IARC Group 2B carcinogen, which identifies this chemical as possibly carcinogenic to humans. [Emphasis added] Apparently it only takes possibly to make the list. 

The full list includes a large number of arcane-sounding chemicals, e.g., Amikacin Sulfate and Zalcitabine, but it also includes alcoholic beverages, aspirin, tobacco smoke, nicotine and oral contraceptives.  

How helpful is this? Is tobacco smoke or nicotine a surprise? Why do Californians need the information and not everyone else? Coffee contains acrylamide, which is on the list, so last year a judge decided, "coffee sellers in the state should have to post cancer warnings.” But in “2016, the cancer agency of the World Health Organization moved coffee off its ‘possible carcinogen’ list.”

This isn’t science; it’s judges deciding what should or should not be on a list. It’s “The Boy Who Cried Wolf” gone crazy. People don’t have time to be careful about 900 chemicals and all the products they go into. I have no idea which part of the promotional pen I should be concerned about or how it might hurt me. Tanning beds and sunlight are not on the list, but they are not chemicals. It is so bad that my seven-year-old granddaughter upon returning with her parents from a vacation in San Diego commented about how silly it was seeing all the warning signs everywhere coffee was sold.

Not only is this not helpful, it adds cost. The extra warning labels and signs cost money. It is costly to reformulate products to avoid having to post warnings, or worse, to avoid the threat of lawsuits from lawyers, “some of whose businesses are built entirely on filing Proposition 65 lawsuits” on behalf of “straw man plaintiffs." The cost of these nuisance consequences comes back on all of us. (Economic understanding reminds us there is no magic money tree to make up the difference. It all get passed along to the end consumer.)

Does the list ever shrink or become reasonable, or do we get to the point where everything needs a progressively more meaningless label. I’m sure many people thought this was a really good idea back in 1986 not realizing that they may have created such a monster.

Responsibility - It’s Never My Fault

The tragic news originally came out on July 8. Yahoo reported it with the headline: “Young girl falls to death from cruise ship ‘after being accidentally dropped by grandfather.’” Everyone was shocked and saddened. A little 18-month-old girl from Indiana fell “about 150ft after slipping through her grandfather’s arms as he held her by an open window, according to local media reports.” The family was vacationing on a cruise ship. The incident happened while the ship was docked at San Juan, Puerto Rico.

This sad story might have ended there. But at the time I predicted that lawyers were probably tripping over each other trying to get to the family to convince them that it was not their fault; the cruise line was probably to blame. The family is understandably suffering, and shifting the blame and collecting some compensation would provide some level of closure and relief. The child will not have died in vain if they can use this lesson to make cruise ships safer.

The case would move into the American legal system where they can achieve some sense of relief at no cost to them. Attorneys will take thirty to forty percent of the award or settlement amount, charging nothing if they don’t win. The cruise line need not be shown to be totally at fault; only a small amount of blame will make them legally liable for damages.

Originally, the reports held that the grandfather was holding the toddler on a ledge next to an open window when she wriggled free, he lost his grip and she fell. By the next day the story is changing. They were in an area designed for kids with a wall of windows, which passengers can open. Their attorney says, “She fell because an open glass pane should have been closed securely” and describes the open window as a “hidden hole” in that wall of windows. The grandfather unknowingly placed the child on “the wood railing before the wall of windows, believing Chloe will bang on the glass just like she does at her brother's hockey games, ‘and the next thing he knows, she's gone.’”

The following day an Australian news outlet reports that the family “denied reports the little girl’s grandfather lost his grip on her.” Judging from the pictures accompanying that story, the wall of windows consists of upper and lower panels, each about three feet high with only the upper ones able to be opened. Despite the fact that it is highly unlikely that an 18-month-old could get out of such a window unassisted and that it is strange that a grandfather would be unable to distinguish between an open window and a pane of glass, they insist on placing “significant blame” on the cruise ship. (Are we to believe children commonly plummet out of these hidden holes?)  

In the later reports, see how quickly the baby has a name with cute pictures posted along with pictures of grief stricken parents. This benefits the news media by further sensationalizing the story and benefits the lawyers in the same way.

What will happen next is clear, and this headline tells it all: “Lawsuit likely to be filed by end of month in toddler's cruise ship death.” Would many companies take the risk that a jury, looking at those cute pictures and seeing such pain in the faces of the parents, would decide that the grandfather was careless and there was no reasonable action the cruise line could have taken? No, they will use the “did they do everything possible” argument, a condition no one could live up to. I predict a settlement for an undisclosed amount: happy lawyers, parents somewhat comforted and jurors feeling good about being able to bring about some level of comfort.

It’s happened so many times before. People die of lung cancer after a lifetime of smoking; relatives sue. People get sick from improperly using pesticides; relatives sue. Bartenders don’t take responsibility for their customers. The list goes on, facts don’t matter, no one is responsible and we are no longer surprised.

Responsible Behavior

At the beginning of last week CBS (and several others) reported on a big cat attack at an Arizona zoo. “A jaguar attacked a woman who crossed a barrier to take a photo with the animal at an Arizona zoo Saturday evening, officials said. The woman sustained non-life-threatening injuries in the attack at the Wildlife World Zoo in Litchfield Park, about 20 miles outside of Phoenix.”

The woman, not identified at the time of the incident, had severe gashes on her arm and was taken to a local hospital. She had stepped over a barrier to lean against the cage to get a better picture with the jaguar. The 3-foot barrier was separated from the cage by approximately four feet and intended to keep visitors far enough away from the cage, but people could still get over it if they chose. The zoo officials, who apparently decided the cat was not at fault or particularly dangerous under normal circumstances, temporarily removed it from the exhibit.

Refreshingly surprising was the woman’s reaction in an interview the following day, also on CBS. How easy would it have been to blame the zoo and run out to fetch a lawyer to sue them for negligence? Things like that happen every day in America. Surely a sympathetic jury would have focused on her injuries and distress, ignoring the part she played in the incident and possibly granting her a substantial award. Otherwise, the zoo might have offered to settle for undisclosed damages just to avoid the hassle of litigation. News like this is commonplace.

Actually, she told the interviewer, “I was in the wrong for leaning over the barrier.” She did suggest that the zoo modify the design to make it less tempting and more difficult for others to make the same mistake. She is hoping to turn her frightening experience into an example for others. As a closing comment she added, “I never expected this. I feel like we're all human, we make mistakes and I learned my lesson.”

A good sign of responsibility is admitting your mistakes or your contribution to a problem. It’s refreshing, and all too rare, to see this kind of behavior in the news.

Natural Food and Holy Water

True story: Some years ago an older woman visiting her Catholic church noticed the baptismal font was empty. She saw the maintenance worker nearby and told him about it. She was shocked when she saw him run a garden hose through the window to refill it. He explained that the priest would come by to bless it later. 

In a sense natural food is a lot like holy water. It is often as much about faith as anything else. And now people are fighting like a bunch of theologians about what is and is not natural.

The question arises from a lawsuit against LaCroix sparkling water. The company advertises that the beverage contains no calories or artificial flavors and that it is enhanced with natural essences. But what those essences are is a trade secret. Customers don’t have a clue as to the meaning of “naturally essenced” written on the cans. They assume that natural means good. 

But the class-action lawsuit filed last month claims that “LaCroix's all-natural claims are false and that these natural ingredients are actually synthetic.” Although some of the ingredients can be derived naturally, they are listed by the FDA as synthetic and can be found in such products as insecticides. “Popular Science breaks down why the argument doesn't seem to hold up, noting that none of the ingredients mentioned in the case are considered dangerous.”

This is reminiscent of the “devastating news” a few years ago about wood fiber in grated cheese. Actually it was cellulose, but wood fiber sounds scarier. It’s used to reduce clumping, but some companies were adding more than the allowable 4%. No one was hurt and the fuss was far out of proportion to any actual impact. It was more about the principle of purity and the fact that wood fiber in cheese makes a good headline.

Another example comes from the makers of Prevagen, a highly advertised memory supplement derived from jellyfish protein. A minor problem is that they don’t actually get the protein from jellyfish. They synthesize it in the lab. A much bigger problem is that it has not been shown to be effective – it doesn’t do what it claims.

But the natural labelling issue is troubling for some. The main objection is the lack of a clear definition for the term as shown in the following statement. “Although the FDA has not engaged in rulemaking to establish a formal definition for the term ‘natural,’ we do have a longstanding policy concerning the use of ‘natural’ in human food labeling. The FDA has considered the term ‘natural’ to mean that nothing artificial or synthetic...has been added….” 

But does a formal definition make that much difference? There is no question that green tea is natural. BBC Good Food told us about it last July. “With origins going back as far as 5,000 years, green tea is commonly drunk and widely grown in the Far East where the health properties are well regarded.” Later in the same article they say that evidence of its health benefits are "largely inconclusive" and that although “many ‘health’ products now include traces of green tea…there is limited evidence to suggest these products are effective.”

Last week came a sterner warning from BBC Health on the same subject. “When Jim McCants started taking green tea pills he had hoped he was giving his health a shot in the arm. Instead, it appears the pills caused such serious damage to his liver that it required an urgent transplant.” Though this is highly unusual, it can happen.

So natural doesn’t necessarily mean healthy; it doesn’t even always mean safe. Many other substances are natural and not safe, nicotine, for example. The shock when people hear this is like finding out holy water can come from a garden hose. It drives many into denial.

The difference is that holy water is a matter of faith and healthy food is a matter of science. What’s important is whether it is safe and beneficial, not whether it’s natural (whatever that means).

Ridiculous Damages

The verdict is in, literally. Baby powder can kill you, legally. Of course legally is very often different from scientifically.

 A short time ago a jury in Missouri awarded 22 women $4.69 billion in a class action lawsuit “that alleged the company's talc-based baby powder products contained asbestos and caused them to develop ovarian cancer.” The CDC recognizes asbestos as a carcinogen that has been linked to lung cancer, asbestosis and mesothelioma (but not necessarily ovarian cancer).

Of course Johnson & Johnson intends to challenge the verdict and any payout is still years away.

The story itself brings up several points to consider. First, legal liability is not necessarily indicative of any danger nor is it a determination of actual responsibility.

Take the case of breast implants from years ago. This report from PBS gives a chronology of silicone breast implant usage, legal action and scientific evidence, showing how often courtroom evidence and laboratory evidence conflict. Sometimes women were awarded millions in damages, while others had their cases dismissed as new studies were published. Sometimes judges and juries paid attention to the science and at other times they followed their own feelings. This timeline ends at 1999 and does not include the final 2006 FDA approval after the big controversy during the 80s and 90s.

The situation is pretty much the same with baby powder, except there is less guessing about the science. The FDA statement in the article seems clear enough: “After careful review and consideration of the information provided in the Citizen Petitions submitted in 1998 and 2008, and the review of additional scientific information, the FDA concluded in 2014 that it did not find conclusive evidence of a causal association between talc use in the perineal area and ovarian cancer.” The National Cancer Institute seems equally certain: “The weight of evidence does not support an association between perineal talc exposure and an increased risk of ovarian cancer.” But those are only scientific and medical opinions and often carry little weight in the courtroom.

Like those tobacco lawsuits and settlements, people tend to rejoice at the idea that big business has to pay. This may be a desire for revenge for some apparent slight, or it may be driven by envy of anyone richer; but the companies rarely suffer from these punitive damages nor do they typically make major organizational changes. The idea of punitive damages has flaws that juries rarely grasp. Can you name a single tobacco company that went out of business or a single executive who lost his job as a result? Economic understanding tells us that any money paid out ultimately comes from their customers, be they smokers or users of Tylenol.

Finally, is there any consideration of the appropriateness of the award, or are juries just enthralled by some sense of power to enforce justice?

An award of $4.69 billion split 22 ways is a little over $213 million each. Subtract the lawyers’ cut of say, 35%, and each woman (or group of survivors) is left with a paltry $140 million. (That’s why it’s sometimes called “jackpot justice.”) That amount of money is not going to make anyone healthier or happier. (The stress of having that much money is clear from stories of lottery winners.)

These lawsuits don’t fix problems. They just make certain lawyers richer and redistribute wealth in a very minor way. The more news like this is met with a sense of delight rather than disapproval, the more America creeps in the wrong direction.

Economic Connections

Last time I checked into a hotel or motel, it was quite simple. I parked temporarily in front, walked in and told the desk clerk my name and handed over my credit card. In short order I got my credit card back along with my room key and was politely given directions to the room along with other information, such as breakfast or pool hours. I parked my car or drove it to the most convenient doorway. It was easy and pleasant.

The last time I boarded an airplane was a different story. If someone dropped me off, parking was limited and patrolled – and don’t leave the car unattended. I had to show an ID to get my boarding pass and check luggage, which was presumably inspected after the airline took control. I then took my carry-on bag to the security area where everyone lined up, showed an ID again, showed a boarding pass, took off shoes, emptied pockets, separated electronic devices, walked through a scanner, and sometimes had to be rescanned or even searched. I then picked up my belongings, refilled my pockets, put on my belt and shoes and walked to the gate.

It used to be much simpler. Relatives could even meet you at the gate when you arrived, but not any more. Now there is security everywhere, and for good reason. We don’t want terrorists or crazy people to be able to use the airports or airplanes for murder.

This came to mind when I read about  MGM "suing" the victims and survivors of the shooting massacre in Las Vegas where a lone gunman used the MGM-owned Mandalay Bay Resort and Casino as his base of operations to slaughter 58 concertgoers and wound many others. 

Suing these innocent people sounds heartless, but the word is not being used in the familiar sense. There will be no trial, no testimony, no demand for payment. MGM filed for a declaratory judgment, where a judge decides whether they can be held liable for damages. “Here, MGM is asking a federal court to pre-emptively determine whether a particular federal law prohibits a lawsuit by the victims against MGM, instead forcing them to sue only the vendor that provided security.” As people line up to sue someone, MGM wants a judge to move them out of the line of fire.

Of course there are lawyers already jumping into the fray looking for victims to represent and for deep pockets to exploit. In addition, because people either don’t understand the intent of the lawsuit and jump to the conclusion of heartless behavior or believe that the victims deserve as much compensation as possible regardless of real fault, boycotts are being encouraged.

Now I have no interest at all in MGM, but I can predict the ramifications of such a battle. Lawyers will argue that the hotel, and by extension MGM, did not do everything possible to avoid the situation – that’s the usual argument, “everything possible.” Everyone else in the hospitality industry will be put on notice. Their insurance will increase, and they will begin to take steps to do everything possible – which, by the way, is impossible when you can’t predict what threat(s) to anticipate.

As a result, all travelers will be affected in at least a couple of ways. First, things will cost more. Economic understanding tells us that when costs like insurance and precautions go up across an entire industry, there is no competitive incentive to absorb the costs. They are easily passed on to all customers.

Second, could checking into a motel become more like taking the plane, with some combination of heavily monitored parking, baggage inspections, metal detectors, photo IDs, take off your shoes and empty your pockets – with the same for all visitors and meeting attendees? 

The second outcome is not guaranteed, but it is possible. This lawsuit by the owner of a Vegas hotel may seem unfair and distant, but our world is connected in many unexpected ways.

Opioid Lawsuits

Recently states and cities, large and small, have made threats or begun the process of suing drug companies that manufacture opioids, blaming them for the epidemic of addiction and over-dose deaths that is sweeping the nation.

Here is a summary of one attorney general’s stance.  “Historically, opioid pain medications were considered too addictive and debilitating for anything but short-term acute pain and end-of-life care.”  But using sophisticated marketing campaigns in the 1990s, they “changed the prescribing culture, convincing doctors that opioids were not very addictive,” encouraging them to prescribe these drugs for chronic pain, using every trick at their disposal to increase sales.  They must take responsibility!

But the form of that responsibility is not specified.  The lawsuits reported on from cities in suburban Chicago “do not specify the amount of damages sought.”  So apparently their idea of responsibility means paying fines to governments.  A class action suit in West Virginia seems to be more focused and specific, seeking “relief for the following damages:

•  Medical expenses, including money (often thousands of dollars) spent on the prescription drugs in question
•  Costs for drug treatment programs
•  Lost wages
•  Pain and suffering
•  Funeral expenses (if they lost a loved one to overdose)
•  Any other relief the Court deems fair and just”

You would hope that such threat of penalties would motivate the drug companies to stop enticing doctors to do their dirty work.  These accusations certainly don’t cast a favorable light on the medical profession as a whole, but it’s probably like politics where everyone thinks their representative (or in this case doctor) is good, but the rest are despicable.

  

It reminds me of the lawsuits against Big-Tobacco, the primary difference being that tobacco has no redeeming characteristics, whereas opioids help people cope with severe pain.  Shutting tobacco companies down or at least fining them and requiring them to widely advertise the evils of their product makes sense, especially if it drives up the cost of cigarettes.  Driving up the cost of drugs or making them less available for the people who need them, on the other hand, would not be optimal.

Another problem arises from the fact that some of the people who became addicted and overdosed, did so using drugs that they obtained illegally.  Do we reward people for breaking the law by reimbursing them for lost wages, pain and suffering or money spent on their drugs?  That is for the courts to decide. 

Something to consider is how such a precedent may play out, suing companies that make a legal, beneficial product that can also be used irresponsibly or to break the law.  Some have already raised the idea of suing gun manufacturers.  Will cities move on to sue paint companies because they can’t control the spread of graffiti?  Will ladder makers be held accountable for the actions of cat burglars?  Why not sue glove companies or towel companies when no fingerprints are left behind at the scene of the crime?  Why didn’t this come up years ago when drivers were buying radar detectors for the sole purpose of warning them to slow down before they're caught speeding?  That was a product that, only with a great deal of subterfuge, could be represented as a benefit to society.  Lawsuits of this kind have already driven companies to plaster packaging and inserts with a host of, often ridiculous, warnings.

Some of those examples are farfetched, but the point is that states, cities and individuals seem to be surrendering, admitting the problem is beyond their control, their resources and their abilities, while looking for a scapegoat.  But isn’t this search for someone else to blame typical behavior of the addict they are trying to help and one of the first things they must overcome before recovery is possible?  Does no one else see the irony?