Law and Magic Blog

Those Magical Spoons! @PhilipTreece

From CollectingMagic.co.uk, a piece about trick spoons from Philip David Treece.  

Magic For Sale

Francis Young discusses the commercial side of magic in Tudor and Stuart England here for the History Vault. He also notes that the use of magical spells and other swag might get you into legal trouble. 

For more about grimoires, check out Owen Davies, A History of Magic Books (Oxford, 2010).

Pick a Card, Any Card

An article by David Robson of the BBC discusses the research of magician Jay Olson, who studies the psychological tricks of his profession, and explains how advertisers, politicians, and yes, magicians, among others, are master manipulators. More here.

Magic Lawn Care

With two eccentric magicians. Somehow, I think it's easier when it's on film. BTW, remember that P&T Bullshit episode about lawns?

Speaking of--have you noticed the number of commercials featuring magicians?  Criss Angel's popcorn commercial, David Copperfield's State Farm commercial. YouTube has several of Harry Blackstone from several decades ago as well. What I think is interesting is the use of the magician's skill--"I can create something out of nothing" juxtaposed against the notion that the product does wonderful things, just as advertised. How persuasive is the commercial's message, as opposed to the magician's narrative? Fascinating.

UK ASA Upholds Complaint In Reflexology Case

The UK's Advertising Standards Authority (ASA) has upheld complaints concerning the Reflex Clinic online portal. The website's text stated

“As well as being used to assist in a wide variety of conditions, Reflexology techniques may be used in cases where there are fertility issues (Fertility Reflexology) ... Whilst reflexology does not claim to diagnose, treat or cure a disorder, it is thought that some disorders, detailed below, may respond well to reflexology. This is based mainly on anecdotal evidence and some limited scientific research: - Nervous system - Headaches, Migraines, Insomnia, Stress, Emotional Stress, ADHD, Anxiety, Panic Attacks and Depression; Glandular System - Reproductive - Hormone Imbalances, Menstrual Problems, Menopausal Concerns, PMT, Perimenopause, Fertility Issues, Pregnancy Issues, Prostate Problems; Glandular System - Metabolic - Hormone Imbalances, Thyroid Imbalance, and Adrenal Stress; Circulatory System - Hypertension, Stress, Poor Circulation and Oedema; Respiratory System - Asthma, Hay Fever and Sinusitis; Immune System - Viruses (M.E., glandular fever, Epstein Barr), Cancer, Fatigue, Stress and Auto-immune Disorders such as Rheumatoid Arthritis and Lupus; Urinary System - Hypertension, Water Retention and Backpain; Structural System - Sciatica, Stiff Neck, Muscle Cramps, Tennis Elbow, Toothache and Frozen Shoulder; Digestive System - Indigestion, Heartburn and Stomach Cramps; Intestinal System - Constipation, Poor Appetite and Irritable Bowel Syndrome (IBS); Post operative recovery; Palliative Care and more ...”.

The ASA examined claims made for reflexology on the site and testimonials provided there. It also noted a disclaimer posted on the site.

We have done everything possible to make this website compliant with the ASA. We have however, for the purposes of your convenience, left in some medical terms where appropriate as these are the terms that you the user would be searching on and we are therefore unable to remove them because you would no longer be able to find the website using those terms in your google or yahoo search criteria. (We have no control of terminology used by searches). All material on this website is subject to this disclaimer. See the footer link on each page. Reflexology is not intended to replace the relationship with your primary health care providers and the consultation is not intended as medical advice. The consultation is intended as a sharing of knowledge and information from education, research and experience. The information and service provided is not used to prescribe, recommend, diagnose or treat a health problem or a disease. It is not a substitute for medical care. If you have or suspect you have a health problem, you should consult your GP ...”.

The complainant challenged the efficacy claims, which it alleged were misleading; the disclaimer, which it said contradicted the text on the website; and the website itself, which the complainant alleged discouraged visitors from visiting mainstream medical practitioners in cases in which mainstream medical treatment was a preferable alternative. The ASA challenged the claims made for efficacy with regard to the testimonials.

Said the ASA:

The ASA noted that four of the six studies submitted (both of the stress reduction studies and two of the pain management studies) were pilot studies, designed as preliminary studies to test methodologies before larger quantitative studies took place. A number of the studies acknowledged the limitations of their findings for that reason, such as a pain reduction study that concluded “Reflexology appears to offer promise as a treatment in the management of LBP (lower back pain); however, an adequately powered trial is required before any more definitive pronouncements are possible”. We therefore considered that we would need to see the results of the larger quantitative studies, and not just the results of the pilot studies, before we could conclude that reflexology was able to assist with stress, anxiety and pain management.

We noted the third pain management study provided was not a pilot study, but also noted it stated that reflexology had no statistically significant effect after three or 24 hours. We therefore considered the study did not provide evidence that reflexology could assist with pain management.

We noted the PMT study was small, with 18 women undergoing reflexology treatment and 17 women undergoing a placebo reflexology treatment as a comparison. We noted the study found a positive link between reflexology and PMT, stating that it found a “significantly greater decrease in premenstrual symptoms for the women given true reflexology treatment than for the women in the placebo group” and “The primary benefit reported by the women receiving true reflexology was the experience of profound relaxation”. We also noted the study stated that it looked at 38 symptoms of PMT and stated that reflexology could benefit both somatic and psychological symptoms, but that it did not specify which of those symptoms reflexology was able to benefit.

We noted that the ASA and CAP had accepted previously that reflexology might help with relaxation, mood improvement, tension reduction and an improved sense of well-being. Those benefits were relevant to PMT symptoms such as poor mood and tension, and we therefore considered that claims that reflexology could have those benefits were acceptable. However, because the study was very small, involved self-reporting by subjects rather than objective measures, and did not specify whether reflexology could benefit symptoms beyond the general benefits we found acceptable, we considered we were unable to accept the study as sufficient substantiation that PMT responded well to reflexology. We considered that stating reflexology could benefit PMT implied it could benefit the more specific or serious symptoms of PMT that women might experience such as depression, anxiety, breast tenderness or cramps, when we had not seen evidence for that.

Because we had not seen evidence that reflexology could provide benefits beyond relaxation, mood improvement, tension reduction and an improved sense of well-being, we considered the efficacy claims for reflexology listed had not been substantiated and were misleading.

The claims breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 12.1, 12.2 and 12.6 (Medicines, medical devices, health-related products and beauty products).

...

While we noted the disclaimers clearly stated that the site was not intended to prescribe, recommend, diagnose or treat a health problem or disease, we considered they directly contrasted with the claims in the main text of the site, which outlined a large number of serious medical conditions that the site stated reflexology might be able to assist with. We therefore concluded the disclaimers contradicted rather than clarified the main text of the website.

The claims breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), and 3.7 (Substantiation).

We noted The Reflex Clinic had ensured the site contained a number of disclaimers and replaced “can” with “may”. We considered that the term “may” still implied reflexology could have some benefit on the conditions listed, when we had not seen evidence that that was the case. We noted a number of the conditions listed in the ad were serious conditions that medical supervision should be sought for such as cancer, depression and auto-immune disorders. We were concerned that by stating reflexology could assist with those conditions, the site might discourage some individuals from seeking medical advice when it was required. As noted in (2) above, we considered the disclaimers on the site contradicted rather than clarified the text, and therefore did not consider the disclaimers were sufficient to ensure individuals were not discouraged from seeking medical advice.

The claims breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 12.1, 12.2 and 12.6 (Medicines, medical devices, health-related products and beauty products).

...

While we noted the testimonials may have been genuine opinions from clients, we noted we had not seen objective evidence that reflexology was able to have the benefits those clients claimed it could, such as treating depression or anxiety. We therefore concluded that the efficacy claims in the testimonials had not been substantiated.

The claims breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 3.47 (Testimonials), 12.1, 12.2 and 12.6 (Medicines, medical devices, health-related products and beauty products).

The ASA ruled that the Reflex Clinic could not publish the claims again "in their current form" and told the Clinic not to repeat the claims that had not been "substantiated."

What is reflexology? Here's a definition from theAssociation of Reflexologists, a UK-based organization.

Reflexology is a non-intrusive complementary health therapy, based on the theory that different points on the feet, lower leg, hands, face or ears correspond with different areas of the body.

This is how the Reflexology Association of America defines reflexology.

Reflexology is a non-invasive complementary practice involving the use of alternating pressure applied to reflexes within reflex maps of the body located on the feet, hands and outer ears.

An Indian Judge On Tantriks and Their Remedies

Interesting post from an Indian judge concerning tantrik practices. Apparently tantriks are regulated under Indian law. Says Justice Kannan, in part:

The Indian Medical Council Act, 1956 establishes the Medical Council of India (MCI). The Council has notified Indian Medical Council (Professional Conduct, and Ethics) Regulations in 2002 which mandates observance of the code of conduct on the pain of suspension or removal of the licence to practice for the breach of its regulations. They include the practice against promising magic remedies and advertisements. To the extent to which the Regulations are directed against practitioners of only the allopaths, it is obvious that we have to look elsewhere for the practitioners of other systems of medicine. The Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) established by the Ministry of Health & Family Welfare in March, 1995 gives no similar guidelines.

It is not merely unethical to prescribe a magic remedy; it is illegal under the Drugs and Magic Remedies (Objectionable Advertisements) Act passed as early as in 1954. The Act proclaims its avowed object to be to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Magic remedy includes ‘a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals’. Even machines of science or of electric treatment whose magically curative properties are advertised by a person as capable of increasing the sexual virility of a patient is prohibited under the Act. They will be treated as articles intended to influence the organic function of the human body which is prohibited under the Act.

Extremely interesting. More here.

Fort Worth Bans Religious Bus Ads

Fort Worth's Transportation Authority has banned all religious bus ads after several Christian groups objected to atheist bus ads that were part of the "Good Without God" campaign this holiday season. More here.

Persecuting the Pomegranate

The FTC has filed a complaint against the makers of Pom Wonderful, that juice made from pomegranates (and other things) that is supposed to "help prevent or treat heart disease, reduce the risk of prostate cancer and overcome erectile dysfunction." Hmmm. Sounds like great stuff. But if one makes medical claims for one's product, one is supposed to get an okay from the Food and Drug Administration, and the Pom Wonderful folks did not. Hence the administrative proceeding. Another, obvious, problem, at least for me.  Pom Wonderful sounds, well, just too wonderful. Heart disease, prostate cancer AND erectile disfunction? FTC complaint here.

Here's Pom's response, by the way. "We do not make claims that our products act as drugs,” the company said. “What we do, rather, is communicate, through advertising, the promising science relating to pomegranates. Consumers and their health providers have a right to know about this research and its results....We do not make claims that our products act as drugs....What we do, rather, is communicate, through advertising, the promising science relating to pomegranates. Consumers and their health providers have a right to know about this research and its results. It’s a shame that the government is unable to understand this fundamental distinction and instead is wasting taxpayer resources to persecute the pomegranate." All right, then.

North Carolina Secular Association Billboard Defaced

From WSOCTV.com, a story about a secularist billboard which shows part of an American flag with the words, "One nation, indivisible." The North Carolina Secular Association and a local group put up the billboard on the Billy Graham Parkway (Charlotte, NC) (the Billy Graham Parkway? Oh, that's ironic). Sometime during the last weekend of June, someone defaced the billboard by adding "Under God". The NCSA has asked the police to investigate, and is replacing the billboard. It is also putting up additional billboards in other North Carolina cities such as Wilmington, Asheville, and Raleigh. The billboards are part of the association's "One Nation Indivisible" campaign.

CNN picked up the story here on its Beliefblog. I found some of the comments interesting, and some distressing or ignorant. What I think is even more ironic is the way in which the words on the billboard brought out someone's willingness to commit a crime because others want to express their freedom of speech. Christopher Grant writes about the meaning of graffiti here in an FBI document. Although he concerns himself primarily with graffiti, gangs, and urban violence, he does say this:

Public attitudes toward graffiti tend to fluctuate between indifference and intolerance. On a national level, the criminal justice system has yet to adopt a uniform response to graffiti
and the individuals who create this so-called street art. While some jurisdictions combat the problem aggressively, others do very little or nothing at all to punish offenders or to deter the spread of graffiti. To a large degree, society's inability to decide on a focused response to graffiti stems from the nature of the offense. It could be argued that graffiti falls into the  grey area between crime and public nuisance.

Other coverage here, where William Warren, head of Charlotte Atheists and Agnostic, the local group that co-sponsored the local billboard, notes someone would have needed at least a couple of ladders, extreme tallness (or is that tall-icity? no, no, I mean height) to reach the billboard. Maybe they used magic. But seriously now, Mr. Warren also reveals that nearly 60 new members have joined his organization, due to the news of the anonymous graffiti-ists. Ah, more irony.

 

 

The Magic of Trademark Law Jurisprudence

Katya Assaf III, Hebrew University of Jerusalem, has published "Magical Thinking in Trademark Law." Here is the abstract.

People in all societies have a strong tendency toward magical thinking. This human tendency is extensively exploited by modern advertising, which routinely suggests that consuming goods will make us beautiful, successful, happy, etc. Employing anthropological research, this article suggests that such advertising creates a system of beliefs closely resembling a totemic religion. In this religion, brands perform the role of sacred objects.

The article further demonstrates that trademark law supports and encourages the commercial religion of brands. Trademark law initially aims at preventing consumer confusion as to the source of goods. Yet, today famous trademarks are extensively protected against non-confusing associations. This article argues that this broad protection is based on magical thinking. Pointing out the parallels between the laws of magic and various trademark doctrines, I suggest that famous marks are legally treated as magical, sacred objects. This approach amounts to legally endorsing the religion of brands. I submit that this result is undesirable and probably even unconstitutional in light of the neutrality principle.

 

A provocative and interesting paper.  Download it from SSRN at the link.

Professor Assaf is also the author of Brand Fetishism, forthcoming in the Connecticut Law Review, and Dilution and the Law of Trademarks, 49 IDEA: The Journal of Law and Technology -- (2008).