AIDS Fraud Task Force

The California Attorney General's AIDS Fraud Task Force, the first effort of its kind in the nation, held its initial
meeting on August 18. This group of 24 persons from law enforcement, medicine, and AIDS organizations was formed to protect persons with AIDS or related conditions from unorthodox remedies considered to be "quack" or fraudulent.
This writer is a member of the Task Force. I accepted the invitation to join despite misgivings. For example:
* It is hard to distinguish legitimate unconventional treatment attempts from fraudulent ones when so much is
unknown.
* AIDS quackery is less prevalent than people are eager to believe, as the community is highly skeptical of claims and inclined to discuss them with peers and physicians before buying.
* A legal crackdown would threaten the openness and communication which allows rational grassroots experimentation and cumulative development of treatment knowledge in the AIDS/ARC community.
But the Task Force will exist with or without my presence. Being involved allows me to bring to its attention certain
information which otherwise would not be considered -- and to report on its doings to the community.
Readers outside of California will not be directly affected, but may be interested because other states are likely
to organize similar efforts.


Government Powers

The first meeting, by telephone conference among three locations in San Francisco, Los Angeles, and San Diego, was largely devoted to explaining the enforcement powers available under California and Federal law. Those of us involved in alternative treatments may need to become aware of these powers and laws. The specific citations below apply to California; you can easily look up the text of the laws, together with helpful annotations, in a public library.
* Deceptive advertising. It is unlawful to make statements which the person knows or should know are false or
misleading, with the intent to sell goods or services. The statements need not actually be false to violate the law, nor
made with intent to defraud. Violations are punishable by up to six months in jail and fines up to $2500. per violation --
which could become hundreds of thousands of dollars since every person solicited by the advertisement could be considered a separate violation. (Business and Professions Code 17500,Health and Safety Code 26460)
* Unfair competition. This extremely broad law covers deceptive advertising and much, much more. Any business
practice which violates any public policy may be included. Basically the law applies if the prosecutor can convince the
judge that something isn't right. (Business and Professions Code 17200)
Unfair competition is not a crime in California, but the law provides extraordinarily powerful civil remedies. The
court can place the business under supervision, and order corrective advertisements or other restitution, etc.
* California's Sherman Food, Drug and Cosmetic Act prohibits selling or giving away any new "drug" which has not
been approved. "Drug" is defined to include "any article which is used or intended for use in the diagnosis, cure, medication, treatment, or prevention of disease..." Technically this language would outlaw almost all of the health-food and vitamin industries; it hasn't been used that way because of political constraints.
* The State can bring felony or misdemeanor charges of intent to defraud. It can remove any dangerous product from
sale, and seize and destroy it at the site. It can order local health departments to remove a product from sale if the product is a health concern.
* California law prohibits any advertisement--false or otherwise--that any drug or device can have any effect on any
of 37 specific diseases, from appendicitis to whooping cough (the list is in alphabetical order). AIDS is not listed, but
the Task Force is following up on a suggestion to ask the legislature to add it to the list. The only exceptions are
advertisements distributed only to medical professionals, or claims specifically allowed by State health authorities.
(Health and Safety Code 26463)
* Special California laws make it a crime to offer, sell, or give anything to be used to treat cancer, unless officially
approved in advance. This law applies even to medical doctors, even if the treatment is given away free, and even if it does in fact work. Only certain faith healing is exempt. (Health and Safety Code 1707.1, 1709, 1715)
At least one member of the Task Force is trying to get this cancer law amended to apply also to AIDS and related
conditions. Such legislation would apparently criminalize all unofficial, alternative treatments, such as AL 721 or DNCB, or vitamins, nutritional supplements, herbs, acupuncture, etc. when used for AIDS--even by a medical doctor. Anyone who helped a friend obtain such treatments could be prosecuted. The legal choices would be AZT or nothing. Yet this critical policy change could slip through the legislature, unknown to the AIDS community and even to the legislators who voted for it, because only a few lines of text would be needed to amend the existing cancer law. This small section could be buried in other legislation. Without competent, ongoing community vigilance this nightmare could easily happen.
* There are other government powers, too. Any district attorney can require advertisers to provide evidence to support certain claims--and obtain court orders if they don't respond or if officials have reason to believe the advertising is false. (Business and Professions Code 17508) The Task Force plans to make extensive use of this provision, partly to educate itself about unconventional AIDS/ARC treatments.
Practitioners of unapproved treatments could be prosecuted for grand or petty theft. The Board of Medical Quality
Assurance can revoke the licenses of physicians. The U. S. Post Office can cut off the mail of a business, or prosecute
for mail fraud. The FDA can seize goods, bring injunctions, or prosecute criminally. California can prosecute violation of
Federal laws, guidelines, and regulations, as being "unfair competition" under California law. State prosecutors can be
deputized to assist in Federal cases when the Federal agencies have greater powers.
Though not mentioned by the Task Force, persons involved in unapproved treatments could be charged with "conspiracy" to violate any of the above laws or others--a felony even if the alleged violations are misdemeanors, and even if in fact they never occurred.
California enforcement officials are now examining traditional ethnic medical practices, translating medicine
labels from Spanish, Chinese and other languages to judge them according to U.S. and California laws. They have been watching the gay press, and are now increasing this surveillance.


Restraints On Powers

* The main limitation on all these powers is the First Amendment in the Bill of Rights. Citizens have the freedom to
discuss unorthodox medical ideas in books or articles, on talk shows, etc. However, government agencies may prepare guidelines for media, which publishers may voluntarily use, making it harder for unapproved ideas to reach large audiences.
* Most official attention focuses on false or unsupported medical claims. It's much harder to prosecute someone who
doesn't make any claims.
Sometimes this system works well, allowing the community to make its own judgments free of commercially motivated
misinformation or distortion. Persons who have informed themselves can then buy the necessary products from
individuals, organizations, or companies whose sole business is to supply those products, not to promote their use or persuade anyone to buy. By contrast, the quick-buck artist is usually an outsider who cannot operate without advertising.
Medical frauds have almost always been promoted by someone with a commercial interest in them. By contrast, with
unapproved AIDS/ARC treatments, the manufacturers, distributors, retailers and anyone else with a commercial
interest in the treatment are often the last to know about its relevance to AIDS. The initiative normally comes from persons with AIDS or ARC, not from the seller.
* Law enforcement is far less efficient in detecting and stopping one-on-one "quackery" than the publicly advertised
variety, because there is no good system of surveillance for detecting the former.
* Members of the Task Force are concerned about "not losing the public relations war", as they perceived happened in an earlier crusade against laetrile, an unapproved cancer remedy made from apricot pits.
This concern appears, for example, to have protected the "guerrilla clinics" so far. A central principle of the
guerrilla clinic movement is never to charge money, to give away everything for free. Prosecution would be perceived as an attack against persons with AIDS who were trying to save their lives--not as an attack against unscrupulous promoters preying on those persons' desperation.
Since the many overlapping laws are broad enough to prosecute virtually any involvement with any AIDS treatment not already officially approved, public relations in all its facets may be our only solid defense. The laws embody a
paternalistic, experts-know-best philosophy; yet for years the public has turned away from this approach, toward more personal knowledge and involvement in one's health care. Thousands of Americans with diseases other than AIDS know that they are being denied necessary pharmaceuticals readily available in Europe or Japan, purely by red tape and officials' turf protection, unsupported by any scientific or medical justification. Probably millions of others are being denied proper treatment although they don't know it yet. We can work in coalitions to support public policies which are more rational and humane.
* The Task Force is making a sincere attempt to target clearly unjustified or exploitative practices, without
depriving people with AIDS of treatment options. The law-enforcement staff wants to focus its resources on those cases
which represent major financial or health risks to patients. The dangers arise from difficulties in defining the task, not
from ill will. It is easier to conduct a legal arms race than to deal with the central ambiguities of what the Task Force
seeks to accomplish.
How can you distinguish treatments which are worthless from those which in fact are promising though they are not yet
accepted by the mainstream--a distinction which by definition the doctors and scientists closest to the matter are not able to make? How can you stop the seller without also restricting the buyer? How can you apply enough heat to scare off the would-be frauds--often professionally skilled in the use of legal loopholes--without also chilling the information flow which is essential for the health of the community? How can you avoid a frontal attack on hope when mainstream medicine has so little of it to offer? How can the public rely on good intentions of prosecutors, when these could change overnight with a new political climate or new personnel? The growing war against AIDS fraud will have fundamental problems until these questions have clear answers. The answers are not in sight.
(Note: You can reach the Attorney General's AIDS Fraud Task Force through Michael R. Botwin, Attorney General's
Office, 3580 Wilshire Boulevard, Los Angeles, CA 90010, (213) 736-2160 . The Attorney General's staff particularly wants to hear about any AIDS treatment practices which you believe are fraudulent or otherwise improper.)