Mind Over Matter - Can a Placebo Trigger a Biological Response?

The medical journal The Lancet recently reported that placebos may sometimes have a biological effect on the body.  For example, when patients with Parkinson’s disease were given dummy pills their brains actually released dopamine, which resulted in the patients feeling better.  This finding might raise some intriguing advertising substantiation questions.  As you all know, the FTC’s view is that health related claims often should be supported by one or more clinical studies, which in turn, should be double-blind, placebo controlled, etc.  But suppose the placebo mimicked the biological effect of the tested product to such a degree that there was no statistically significant difference between the two.  Shouldn't the product be able to make the relevant claim?  Further, could an advertiser successfully defend a Section 5 case by arguing that even if the product doesn’t work, its advertising was so effective that consumers' belief that the product works created the promised benefit?  If so, should it matter that it was the advertising, and not the product, that really resulted in the product performing as claimed?  The 7th Circuit recently rejected a defense -- in the Q-Ray Bracelet case -- that a product truthfully claimed to reduce pain based upon a perceived placebo response.  In that case, though, there was no proof of an actual physical response, just that the user perceived less pain.  No doubt the medical community will be monitoring this topic with interest.  In the meantime for all of us naturally skeptical lawyers, maybe a little belief now and then isn’t such a bad thing.

- Randy Shaheen