Sue the “Chemical-Free” BastardsJune 17th, 2013
While I’m an idealist at heart, in my old age, I’ve increasingly found myself giving in to apathy and letting things slide more often. In the shower this weekend, I saw another one of my fiancée’s hair-care products advertised as “chemical free” and was soon awash in the same frustration expressed in this old post. The phrase “chemical free” is profoundly stupid, it is damaging to our field, and the problem is getting worse. While a lot of frustration has been expressed by a small group of chemists online, I’ve seen no effective campaign against the stupidity of the term “chemical free.” On the flip side, you’ve got another group of chemists who find the argument against “chemical free” to be pedantic, and some have even embraced the term for use in lab.
While I might be closer to abandoning this cause in favor of apathy, I don’t think the problem is worth giving up on just yet. Previously, I have lobbied bench chemists to become more involved in educating the public, suggested that the ACS develop a “war room” to address misinformation in the mainstream media, and volunteered a first draft of a pro-chemicals ad campaign. But maybe that’s my idealism talking. “Positive” approaches, where we tout the benefits of chemistry, require a lot of effort and take time to bring about change. Perhaps it would be more effective to adopt a negative approach? And, of course, what approach could be more negative than to sue?
SUE, SUE, SUE!
Yes, let’s start suing companies that advertise their products as “chemical free”. Make the dummies hurt where it counts: their wallets.
You see, there are laws that require truth-in-advertising, and many of them should be directly applicable to “chemical free” cases. The Federal Trade Commission has explained its policy for how it judges whether or not it will act on potentially deceptive ads:
Certain elements undergird all deception cases. First, there must be a representation, omission or practice that is likely to mislead the consumer. Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations.
Second, we examine the practice from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group.
Third, the representation, omission, or practice must be a “material” one. The basic question is whether the act or practice is likely to affect the consumer’s conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary.
Thus, the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.
So, there are three major criteria for an ad to meet: (i) it must be deceptive, (ii) it must have an impact on a “reasonable” consumer, and (iii) it must induce a material change in behavior on the part of a consumer. Any product which advertises itself as “chemical free” easily meets these three criteria.
First, everything that I have come across as “chemical free” (e.g., cosmetics, fertilizer, sunscreen) has contained chemicals, so the claim is a false written representation of the product. Second, the fear of chemicals is so widespread in society that it is more than reasonable for an average, uneducated consumer to care whether something is “chemical free”. Finally, a “chemical free” label can easily have a material effect in that a chemophobic consumer could choose to purchase a falsely labeled product over a competing product that is not labeled “chemical free” yet contains the same active chemicals.
Unfortunately, it is probably unreasonable for any halfway-decent chemist to claim he was fooled by something as scientifically nonsensical as “chemical free.” But, a class-action lawsuit waged by a group of typical (chemophobic) consumers who’ve purchased a chemical-free product could easily have merit.
Perhaps even more effective would be for a major company (with hefty legal resources) to file lawsuits claiming damages due to unfair business practices. It is unfair to have to compete against rival products that benefit from advertising with false claims. Let’s see these smaller companies have to defend themselves against the giants. Unfortunately, there’s no single chemical-free product on the market that is successful enough to make such a lawsuit a worthwhile cause.
Outside of lawsuits, what can you do? Well, the FTC has an FAQ about what sorts of ads are potentially deceptive, and you can contact them to register a complaint about products making false claims. Some complaints they pursue and some they don’t, but their decisions carry the weight of the law and they can issue cease-and-desist orders as well as fines. You can also register complaints with the Better Business Bureau (BBB) and state/local consumer protection offices.
I’m not saying that lawsuits are the best approach to solving the problem, but in some cases, insisting on the enforcement of existing laws might be an effective solution to the proliferation of all this “chemical free” nonsense.