Inset: Professional endorsement of consumer goods carries obligations and risks. Who would be willing to offer a professional endorsement if the stakes were higher?

Setting: Sunday morning constellation videocast talk show, Rants & Regs, Digital frequency 34.ab.441; 26 November 2009.

Show host, Wayne Harrington: “Joining me now are Professor Jorge Sanosa from Muon University School of Law and Dr. Desmond Emsky, an internist and physician in private practice. Welcome to both of you.”

Prof. Sanosa and Dr. Emsky: “Thank you, Wayne.”

Wayne: “As we discussed in a previous show, the recent settlement between the marketers of Virall and the Constellation Trade Commission (CTC) hinges upon the use of a professional endorser of the product and her express endorsement of the product and statement of superiority. Let’s play a clip of the two minute infomercial…”

Infomercial starts, with video and audio (audio): “I’m a medical doctor [bottom of screen displays “Audra Simon, MD, Family Practice”] and in my practice I’ve seen and treated lots of colds and flus—with drugs, vectors and even gene shots. Some of my patients started asking me about Virall and so I called the company. After reading the clinical research they sent me I was impressed and intrigued. So I started recommending it to my patients, even to mothers for their children. The response I saw was dramatic. I was then approached by Virall and asked if I would be a spokesperson. And here I am. You can trust Virall—a superior natural product for immune health.”

Wayne: “Professor Sanosa, what did the CTC cite in its case against Dr. Simon?”

Prof. Sanosa: “Wayne, Dr. Simon said she read the Virall research sent to her. She also asserts that it is a ‘superior natural product for immune health. The key to CTC’s claims was that, in her role as an expert, Dr. Simon was obligated to assess all of the research on Virall. She received only two studies and yet three other studies had been done, and they were published in peer reviewed medical journals. Those studies showed Virall to be no better than placebo, and in the only study comparing it to any other natural product it was shown to be slightly inferior to high dose vitamin C. Dr. Simon also has no formal training nor expertise in nutrition, which did not serve her well. The hefty fine and nine months in prison were harsh. I’m sure Dr. Emsky can add something here.”

Wayne: “Dr. Emsky, what is your take?”

Dr. Emsky: “Prof. Sanosa’s cogent assessment merits one illustration. Several years ago, a colleague with a PhD in nutrition and I were having dinner at a restaurant. A friend of his approached our table, greeted my friend (we were introduced by our first names), and then he asked my friend’s opinion about the psoriasis on the back of his elbows. My friend gave a very informed response, talking about drug and nutritional interventions, asking if he had any joint pain, and what happened when he went on solar region travels. His friend left and I said to my friend, ‘You were practicing medicine without a license there. You did very well, though.’ He paused a moment and then, smilingly asked, ‘So when I hear you speak about nutritional pharmacology and supplements can I say, ‘You’re practicing nutrition without training or a degree.’?’ Expert endorsement is best served by an expert with the ability to perform thorough due diligence, unless the expert wants to risk litigation or the marketer buying the media wishes to disclose the expert’s lack of expertise…”