- Government as source of product misinformation [David Henderson notes my City Journal discussion of NY AG Eric Schneiderman’s crusade on herbal supplements]
- “Under Armour is suing pretty much every company using the name ‘Armor'” [Washington Post]
- Maryland police unions defend LEOBR (“bill of rights”) tenure laws [my Free State Notes, Ed Krayewski, Scott Greenfield]
- Someone uses an iPhone to transact Islamic State business; could a court find Apple liable for providing material support for terrorism? [Benjamin Wittes, Zoe Bedell, Lawfare]
- Maybe green-lighting a union for tax collecting staff wasn’t such a hot idea in the first place [Washington Post]
- Seventh Circuit: “Appeals court apologizes for literally misplacing case for five years as lawyers wondered what was taking so long” [Jacob Gershman, WSJ Law Blog]
- For the sake of professional dignity, in future employ authorized methods only: “Italian lawyer steals French tourist’s wallet” [The Local, Italy]
Filed under: cellphones, Maryland, police bill of rights laws, public employment, Seventh Circuit, taxes
6 Comments
I’m curious as to how the attorney general went astray in testing herbal supplements. Did he choose the assay method himself? You would think he would hire a chemist and explain what he wanted to do and that the chemist would decide how to perform the assays. So is this a matter of a lawyer making scientific decisions that he is not competent to make or of hiring an incompetent scientist, or perhaps poor communication between the AGs office and the laboratory, which chose the wrong assay method because they did not understand the purpose of the project?
What the AG did was take supplements that used active ingredients that were extracted from plants by a process that destroys DNA and then further purified in a laboratory and had the final products tested for plant DNA.
When the supplements naturally turned up containing no plant DNA, the AG accused the manufactures of fraud.
Likely he simply found a lab that does generic DNA testing and asked them to test a set of samples for plant DNA. Just because the lab does DNA testing, that doesn’t mean that any of its techs would know how herbal supplements are manufactured. They might not even have known that the samples were OTC herbal supplements.
What I wonder is who made the error of testing for plant DNA rather than testing for the extracts directly? If the medical examiner wants to know if someone was poisoned with digitalis, he orders a test for digitalis, not for Foxglove DNA. So, was it the AG or some other lawyer in his office who has DNA on the brain and without thinking ordered a test for DNA rather than for the substance supposed to be in the supplement? If so, I’m not impressed with the very low level of scientific knowledge this implies. If you’re a scientifically illiterate prosecutor, but with some degree of wisdom, you’d consult someone more knowledgeable before ordering tests.
“What I wonder is who made the error of testing for plant DNA rather than testing for the extracts directly? If the medical examiner wants to know if someone was poisoned with digitalis, he orders a test for digitalis, not for Foxglove DNA.”
While it was certainly an error, I don’t think it was the kind of error you are suggesting.
Using your medical examiner example, what would he test for if he needed to prove that it was from an artificial source and not from the victim ingesting Foxglove?
What the AG was trying to prove is that the herbal supplement companies were committing fraud by using [active ingredient] from synthetic sources rather than using actual herbal sources.
The problem is the same as what was problematic in the whole uproar of synthetic bovine growth hormone in milk. The synthetic BGH is identical to natural BGH which is naturally in milk. Because of this, there is no way to prove or disprove that the cow was given synthetic BGH from testing the milk.
That is the nature of the error here. The AG wanted to prove something that could never be proven from testing the end product no mater what you test for.
>”What the AG was trying to prove is that the herbal supplement companies were committing fraud by using [active ingredient] from synthetic sources rather than using actual herbal sources.”
Press coverage has generally suggested that his aim was to prove that the supplements were lacking in the advertised active ingredients, not that the ingredients were present but of synthetic origin. I’m not aware of any attempt by his office to challenge this theme in the coverage.
Press coverage is generally wrong.
It makes no sense at all to test for plant DNA if his aim was to prove that they did not contain the advertised active ingredient.