Quack cures: How fraudulent claims and pandemics sadly go together

Hydroxychroloquine, oregano oil and cow urine all have one thing in common:none of them cure COVID-19.

Regardless, all three have been trumpeted as coronavirus panaceas. Over the course of the pandemic, the U.S. Food and Drug Administration has sent 143 warning letters to companies making fraudulent claims that their products prevent, treat, diagnose or cure COVID-19.

A carcass attracts vultures, and a catastrophe attracts profiteers, keen to exploit widespread suffering and anxiety. In a pandemic, quack cures are one easy way to make a buck off a population desperate to protect themselves.

Snake oil remedies have serious marketing advantages over proven medicine:

• They're typically cheaper than approved pharmaceuticals.
• They're easier to access since they can usually be bought without a prescription.
• They come to market more quickly because they aren't put through a rigorous testing process.
• They make overblown promises far beyond what any responsible scientist would make for a legitimate medication.

Thanks to consumer protection laws, we're better equipped than ever to shut down fraudsters peddling hoax cures, but that hasn't always been the case. We owe some of the legal recourse we have against sham medicine today to an incident from a 19th-century pandemic.

Out of confusion came a phoney cure

In the spring of 1889, a virus broke out in the Russian empire and modern transportation infrastructure, including Europe's vast network of railways, enabled it to spread rapidly to the rest of the world. By December, this "Russian flu" had reached Paris, London and Chicago.

By the time the pandemic finally petered out in 1895, one million people had died worldwide, including a number of celebrities like the dowager empress of Germany, Russian mathematician Sofya Kovalevskaya and Prince Albert Victor, heir to the British throne.

Doctors were out of their depth. They couldn't agree on how the disease was transmitted, let alone how to treat it. Some refused to believe it was contagious at all. Even the name "flu" might have been a mistake: we now have good evidence that the illness was caused by a coronavirus, just like COVID-19.

Quack cures quickly popped up to fill this vacuum in medical knowledge.

One of them was the Carbolic Smoke Ball. Manufactured in England, this hollow rubber ball about five centimetres in diameter was filled with powdered carbolic acid. By squeezing the ball, you could squirt a puff of the powder up into your nose through a black nozzle.

The makers of the Carbolic Smoke Ball advertised that it could cure asthma, bronchitis, hay fever, headache, sore throat and whooping cough, among other complaints. It worked, supposedly, by making the patient's nose run and flushing out their sinuses.

When the third wave of the Russian flu pandemic hit England in 1891, the Carbolic Smoke Ball Company published advertisements in London newspapers claiming their product could stave off the flu. So sure were they of this, they wrote, that they would pay 100 the equivalent of 11,000 today to anyone who contracted a cold or flu after using their smoke ball consistently for two weeks.

The Russian flu's third wave struck London severely, bringing the city to a standstill. Mail delivery was suspended, the courthouses shut down, and the trains that hurtled ceaselessly in and out of city centre ground to a halt.

A precedent for truth in advertising

Confronted with these alarming circumstances, a woman named Louisa Elizabeth Carlill bought a Carbolic Smoke Ball and began taking it religiously to prevent illness. After two months of dedicated use, though, she contracted the Russian flu anyway. When she recovered, she contacted the Carbolic Smoke Ball Company to claim her 100.

Unsurprisingly, company executives weren't of a mind to pay up. They argued there was no way to be sure Carlill had used their product correctly and later said they hadn't really been serious about the offer of money, suggesting that only a fool would believe such an outrageous advertising gimmick.

Unfortunately for them, Carlill's husband was a lawyer. Unwilling to let the matter rest, he and his wife sued the company for the money they had been promised.

In one of the first cases of its kind, the courts concluded that the Carbolic Smoke Ball Company was bound to abide by its advertised offer. In so doing, they set a precedent for truth in advertising: they determined that a published offer is a legally-binding contract.

Carlill v. Carbolic Smoke Ball Company is still cited as one of the foundational cases in contract law.

It's responsible for the "small print" you see in advertising today that lays out the details of an offer.

The legal consequences of that scam medicine have made it easier to fight back against fraudulent treatments, including now, during the COVID-19pandemic.

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