Seventh Circuit Rules That FTC Act Does Not Require Placebo-Controlled, Double-Blind Testing for Consumer Products

Last week, the United States Court of Appeals for the Seventh Circuit concluded that the Federal Trade Commission Act (“FTC Act”) does not require placebo-controlled, double-blind testing for consumer products. 

The ruling, issued in Federal Trade Commission v. QT Inc., upheld a decision by the United States District Court for the Northern District of Illinois (Eastern Division) that the Q-Ray Ionized Bracelet, a metal bracelet promoted as a “test-proven” cure for chronic pain, was a fraud.  Advertisements claimed that the bracelets were either gold or silver and wearing them enhanced “the flow of bio-energy.”  In fact, both courts found that the claims were not test-proven to help reduce pain, and the bracelets were made of brass and did nothing to enhance the flow of bio-energy, a phrase the lower court called “techno-babble.” 

The appeals court stated that “a person who promotes a product that contemporary technology does not understand must establish that this ‘magic’ actually works.”  The court noted that a placebo-controlled, double-blind test “is the best” way to support product claims, but acknowledged that such tests are expensive and may not be financially feasible for all products.  As such, the court held that “something less” than a placebo-controlled, double-blind test “may do.” 

The court did not provide any specific criteria that evidence must meet in order to be deemed reliable, other than to note that “a statement that is plausible but has not been tested in the most reliable way cannot be condemned out of hand.  The burden is on the [FTC] to prove that the statements are false.”  The defendant in the case did have one test that essentially discovered a placebo effect for people wearing the bracelet.  Outside of this test, which the court called “bunk,” however, the only support for the bracelet’s effectiveness came from testimonials, which the court held “are not a form of proof.” 

The ruling in this case is limited; it only applies to the FTC Act.  However, companies that market consumer products may rest easier knowing that one court has ruled that the FTC cannot require them to conduct placebo-controlled, double-blind studies.