In 1893, Clark Stanley gained attention as he introduced the American public to a product that he claimed would cure a variety of ailments – pain, lameness, sprains, animal bites and much more.
Appearing at events known as medicine shows, he would put snakes into boiling water. When the oil rose to the top, he would take it out and mix it into a special liquid. Stanley came to be known as the Rattle Snake King.
But in 1916, he was exposed as a fraud. His concoction was found to have no medicinal value and “snake oil” went on to become a synonym for fraudulent products with deceptive marketing.
In April, as India’s Supreme Court ordered Patanjali proprietor Ramdev and his associate Balkrishna to issue an unconditional public apology for its “misleading advertisements”, it served as a reminder that deceptive public notices by the pharmaceutical sector have a long history – as do attempts to curb them.
Clark Stanley’s Snake Oil Liniment was not the only dubious medicinal product on the US market at the time. Dr Morse’s Indian Root Pills, Lydia Pinkham’s Herb medicine and Kickapoo’s Indian Sangwas Medicines were also advertised with exaggerated or entirely false assertions about their healing abilities.
These concoctions came to be known as “patent medicines”, even though they were legally not patented and their medicinal properties were unproven.
However, in a few years, the rising concerns about these products and advertisements created a widespread public backlash. In 1905, Collier’s Weekly magazine published an expose titled “The Great American Fraud”. The series aimed to bring to light the dubious business practices of leading “patent medicine” manufacturers.
The inflated claims by these medicines were shown to be pseudoscience, backed by scant medical evidence. The series also established the grave public health risks posed by these remedies.
The expose led to two important developments. In 1906, US President Theodore Roosevelt signed the Pure Food and Drug Act to address the problem of misleading advertisements and dangerous products. This law required accurate labelling of ingredients on food and drug products.
Secondly, and more importantly, the dangers of magic remedies were etched in the public imagination and experience. “Snake oil” came to be widely accepted in various dictionaries as something “that someone tries to sell you, but that is not effective or useful”.
On the other side of the Atlantic, the United Kingdom had its own share of “patent medicines”. In the 19th century, deceptive advertising had failed to be curbed by regulations such as the Poisons and Pharmacy Act, 1868, Sale of Food and Drugs Act, 1875 and the Indecent Advertisement Act, 1889.
While the Sale of Food and Drugs Act, 1875 regulated adulteration, it did not address the rising problem of misleading pharmaceutical ads. Similarly, while the Poisons and Pharmacy Act, 1868, empowered the Privy Council to add poisons to the Schedule under the Act, but it did not mandate labelling requirements. The Indecent Advertisement Act addressed only ads that were of “indecent or obscene nature”.
A typical example of the prevalent misleading “patent medicine” advertisements was the case of Carbolic Smoke Ball. In the 19th century, Frederick Augustus Roe introduced the Carbolic Smoke Ball, which was advertised as a preventive remedy against illnesses such as influenza, cold, cough and asthma.
The device – a small sphere with a nozzle – would release carbolic acid when pressed. It gained widespread currency in 1889-’90, when the Russian flu had taken its grip on Britain. This was despite the corrosive nature of carbolic acid, which was often used in surface cleaners.
In one advertisement, Roe claimed that a “£100 Reward will be paid by the Carbolic Smoke Ball Co. to any person who contracts ... Influenza, Cold … after having used Carbolic Smoke Ball”. A woman named Mrs Carlill saw the advertisement, bought the smoke ball, and used it as instructed. When she later caught the flu, she sued the company to claim the £100 reward.
This culminated in the Carlill vs Carbolic Smoke Ball judgment in 1892. In law schools in many places, this is the first case taught in the contract law course. The outcome of the case is well known: Mrs. Carlill was awarded the £100 reward, despite Carbolic Smoke Ball’s claim that the advertisement was “puffery”.
But the significance of this case goes well beyond contract law. It deflated the extraordinary claims made by Roe about the effects of his smoke balls.
After the case, there were calls for greater restriction on carbolic acid. In 1893, a Member of the British Parliament, John Macdonna, cited 230 deaths in support of his motion to regulate the sales of carbolic acid under the Poisons and Pharmacy Act, 1868.
Carbolic acid was added to the Schedule in the Act as a poisonous substance only in 1899. Finally, the UK’s Food and Drugs Act, 1938, marked a pivotal moment by making mislabelled or misleading food or drugs illegal.
Closer home, in India, advertisements for snake bites, diabetes, fertility and other fantastical claims were rampant throughout the early 19th century. The problem led to the formation of a Drug Enquiry Committee in 1930. It submitted its report the next year. Among other things, it recommended a prohibition on advertisements related to “aphrodisiacs, venereal diseases, remedies for diseases of women, cures of cancer, leprosy and tuberculosis”. The report led to the first law on regulating advertisements for drugs.
Nine years later, in 1940, the Drug and Cosmetics Act was passed. But the Act did not create an effective framework to tackle the pervasive problem of misleading advertisements. The 1940 Act did not cover ayurvedic ads and ads in newspapers under its ambit.
Soon enough the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 would be introduced to target advertisements specifically. The 1954 Act remains on the books even today.
However, lapses implementing these laws have been reported time and again. Dinesh Thakur and Prashant Reddy’s book, the Truth Pill, sheds light on many of these lapses. The Patanjali case is yet another example of this.
Nikhil Pratap is a Delhi-based advocate
