- Thanks to CuriosityStream
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CuriosityStream and Nebula with the link in the description. At the moment, there
is no cure or treatment for COVID-19, but that hasn't stopped some of the world's prominent experts from claiming to have found a cure. Rodney Howard-Browne said. - If they sneeze it, it shoots it down at like 100 miles an hour, it'll neutralize it in a split second. - President Trump said. - A lot of people think
that goes away in April with the heat, as the heat comes in. Typically that will go away in April. - Commissioner Culpepper said. - This sounds really
goofy, and it do to me too, but it works, so you hold a
blow dryer in front of your face and you inhale with your nose, and it kills all the viruses in your nose. - And Kenneth Copeland said. - I execute judgment on you, COVID-19. I call you done! - And President Trump also said. - And then I see the disinfectant, and is there a way we can
do something like that? By injection inside or,
or almost a cleaning? - Et cetera. Now some of these clips are funny, but they're also infuriating. People who promote snake
oil cures to COVID-19 prey on the sick and the vulnerable. A suggestion may seem harmless, but encouraging people to
buy or take concoctions that don't actually work
can cause lasting damage. You may be wondering
whether these people have legal liability for promoting
these fake coronavirus cures. You've probably seen them on
Facebook from well-intentioned aunts and debated them
in the comments section of your local news station,
but let's talk about what consequences these
people actually face. And oh yes, we are definitely
going to talk about the president's question
about injecting bleach and taking sunlight internally. (dramatic music) Hey Legal Eagles, it's time
to think like a lawyer, because there's a lot of
bad information out there, and you may be thinking that
when people lie intentionally, they face stiff legal consequences, but it's important to note
that in the status quo, the default position is that
you don't face liability for free speech, that's what the
first amendment is all about, and as we've covered many
times on this channel, there generally is no
criminal or civil liability for lying, generally speaking. The first amendment exists for a reason, and I personally think
that that's a good thing. Generally, you're not going to be sued for making false statements,
even potentially false statements about cures and treatments, even if you post them
to Facebook or YouTube and your comments are viewed
by millions of people, because that's what free speech is about. Free speech covers even
bad ideas and false ones, and it's a problem because
the less people know about these complicated subjects, the more confident they are, which is why today's video is
sponsored by Dunning-Kruger. - If you're like me, you
know more about managing critically ill patients
than doctors and scientists who dedicated their entire careers to it, and so you should drink Dunning Kruger. It's the only choice for
the self-educated gentleman. Dunning Kruger, it'll give you confidence, although I don't think you
need any help with that. Cheers. - However there are times
when you go beyond that, and especially when
you're selling products and you're making specific claims about what this product can and cannot do, there are times when you might face civil or sometimes even criminal liability. So let's talk about things
that are clearly criminal. Under 18 USC 1347, it is a crime to commit healthcare fraud regarding providers, and many people promote
cures and treatments for COVID-19 online, so when
does this cross the line? Well, the DOJ recently
filed its first legal action for coronavirus-related
fraud under this statute for a website that promised to give people World Health Organization vaccine kits in exchange for a
shipping charge of $4.95. Now I can be fairly certain
that these allegations give rise to fraud if true,
because there isn't a vaccine for COVID-19, so when you try
and bilk medical providers out of money for
something that isn't true, that's healthcare fraud. And then there's the
old-fashioned kind of fraud, where you knowingly lie to
people to get their money. There's the potential case
of the people who promote garlic and honey as a
cure for coronavirus. Some even link to a journal article that purports to provide evidence for staking one's life on the garlic cure. Now the NIH journal article
that these people cite to merely finds that garlic
extract had inhibitory effects on bronchitis when tested
on chicken embryos, which is not the same
as working on people, and despite the pseudoscientific
basis for their claims, these people generally
haven't committed fraud because it's not illegal necessarily to spread false information. But it is illegal to sell pills or cures or products that are harmful
or have no real benefit or aren't based on real things when you make those kinds of claims. But I'm just a lawyer, what do I know? Hey Dr. Francis, do honey and garlic actually cure coronavirus? - Honey and garlic have not been shown to be effective in the
treatment of coronavirus. They have, however, been shown to be more delicious than placebo in seven out of 10 chicken marinades. - Well even if these
people aren't put in jail, hopefully they'll get their just desserts. Now that's fraud, but there
are other causes of action that can attach, in certain
circumstances like these, like negligent misrepresentation. In some cases, liability doesn't require a knowing falsehood like fraud does. Negligent misrepresentation
differs from fraud because it doesn't require a
showing of malicious intent to recklessness by the defendant. Instead, it just requires
that the defendant's statement be exaggerated or misstate certain facts, and that these misstatements resulted from the defendant's negligence
or lack of due diligence. But it also has to occur in a circumstance that gives rise to a
duty between two parties. So again, simply going around the world saying misstatements,
even based on negligence, doesn't necessarily make you liable for negligent misrepresentation because you have to be in a relationship with the people that are harmed in relying on those statements. Now I think our discussion of
negligent misrepresentation should probably start
with the most powerful person in the United
States, President Trump. Because the president loves
to talk about chloroquine and its derivative hydroxychloroquine as a potential miracle cure for COVID-19. The drugs are already approved for use to treat lupus and rheumatoid arthritis, and preliminary research
has suggested that the medications could be,
and I stress "could be" here, helpful in treating COVID-19. Well the president and
Fox News have repeatedly touted one small French
study of 20 patients that followed the patients for six days. - It's currently being
prescribed in France, where at least one study
suggests that it works. - Three of those 20 patients
ended up in the ICU, one left the hospital, one couldn't tolerate the
medication, and one died. But again, I defer to the experts here. Hey, Dr. Francis, is
hydroxychloroquine a miracle cure? - The simple answer is we just don't know. It may be, it may not. It has shown some promise
in in vitro studies, meaning in a laboratory, not in humans, but at the time of recording,
there are no trials convincingly showing
evidence of its efficacy. The French study that
got so much attention, which was non-randomized,
has many, many problems, chief being the
differential after follow-up from the treatment time that
you were just hearing about. However, does that mean
that we need to just ignore its findings entirely, of course not. Does it provide enough
evidence to start treating everybody with hydroxychloroquine? Definitely not. Does it provide enough
evidence to want to undertake further research, absolutely,
and there are many trials ongoing all over the world. The WHO is launching a huge multicenter, multinational trial looking
at hydroxychloroquine, and already in many hospitals
all over America and other countries, hydroxychloroquine
is being given routinely. Now, that's partly because
we have few other options, but it is being used, however, all of that has to be in the
context of a clinical trial, otherwise you just don't
know what you're doing, you're not going to assess the response. Remember, 99% of people that
get this, or more, do not die. So to tease out the
effects of any treatment is going to be complicated. We need answers to questions
like if it is effective, in whom is it most effective? In the sickest patients in intensive care or is it better for prophylaxis? We're potentially talking
about millions of people here, so we need solid evidence. - Yeah, science is hard. But the president said that he would make the drug available
almost immediately, and a day later, president Trump tweeted "hydroxychloroquine and
azithromycin, taken together, "have a real chance to
be one of the biggest "game changers in the history of medicine. "The FDA has moved mountains, thank you." President Trump has
said the drugs are safe and that patients have nothing
to lose by taking them. - The nice part is it's
been around for a long time, so we know that if things
don't go as planned, it's not going to kill anybody. - Hey Dr. Francis, do
people have nothing to lose by taking a medication that's
been around for a while? - Hydroxychloroquine and
azithromycin have indeed been around a long time, and so we do know about their side effects,
and both of them can cause a side effect called long QT, which is where the electrics of your heart can be affected, increasing
your risk of suffering a potentially fatal cardiac arrest. Now we don't see this
complication very often in patients taking
hydroxychloroquine for conditions like lupus, which is
one of its common uses, so that may lead you to
conclude that it's safe in all settings, but remember, these patients are being closely monitored by their doctors, but more importantly, they're a totally different
patient population to COVID-19. COVID sufferers are much more unwell, they have high rates of
cardiac and kidney involvement, which could hugely increase their risk. - So what happens if people
rely on these statements and then get sick or die? Well unfortunately, we have the answer. An Arizona man died and
his wife was hospitalized after they took chloroquine phosphate in an attempt to avoid getting COVID-19. Although neither had any
symptoms of the virus, they'd been listening to
president Trump and his allies promote this, quote, cure. - A tremendous breakthrough. - The woman explained that she
knows she had some fish tank cleaner and that one of the
ingredients was chloroquine. She said. - [Woman] I was in the
pantry stacking dog food, and I just saw it sitting
in the back shelf and said "hey, isn't that that stuff
they're talking about on TV?" Trump kept saying it
was, you know, basically, it was pretty much a cure. - And her advice now? - [Woman] Oh my god, don't take anything. Don't believe anything the
president says, and his people. Call your doctor. - Now I've covered presidential immunity in my prior video about
suing China or the president, so this couple is not going be recovering anything from the president any time soon, but even if that weren't the case, the president refrained from making any unqualifying factual
statements about the drug, and of course, he wasn't
selling this drug, and he wasn't in a position that gave rise to a duty of care to the American people. Well, at least not a legal position that gives rise to legal liability, and recently there's
been a lot of literature coming out that
hydroxychloroquine is likely not a miracle cure, and that may lead to many negative health consequences, which is perhaps why
president Trump has turned to other potential cures. - Right, and then I see the disinfectant, where it knocks it out
in a minute, one minute, and is there a way we can
do something like that? By injection inside or,
or, almost a cleaning, because you see it gets in the lungs and it does a tremendous number. So it's be interesting to check that, so that you're gonna have
to use medical doctors, but it sounds, it sounds
interesting to me. - I have a lot of thoughts about this. So many thoughts. Now I'll talk more about those thoughts at the end of this video. Now one of the defenses
that people have raised about the president's remarks is that he was only raising the
question about injecting bleach, not actually suggesting
that people do that. Now believe it or not,
that actually parallels a discussion in the legal
community about hearsay. Recall that hearsay is
an out-of-court statement used to prove the truth
of the matter asserted. Key phrases there being statement
and the matter asserted. Then the question is a question. Is a question a statement? Is a question actually promoting
some sort of assertion? I think most people probably
believe that a question can in fact be a statement
for purposes of hearsay, because there's often
a premise behind that. And with the president's remarks, there is a premise behind that question, the premise being that
people should, in fact, consume bleach internally. Don't do that. But as with the president's
remarks about hydroxychloroquine liability probably wouldn't attach to the president's remarks about ingesting bleach or internally consuming
sunlight in some way. And that result doesn't
change whether the person talking about ingesting
bleach is a random person off the street or if it's the
president of the United States, even if there was, in
fact, apparently a spike in people ingesting disinfectants following the president's remarks. Now the obvious point here
is that no one should be swallowing fish tank
cleaner or injecting bleach, regardless of what the president says. Thinking critically when
you're listening to cable news or the president, regardless
of who is in the White House, is probably always a good idea. But what else could, in fact, give rise to criminal or civil penalties? Federal mail and wire fraud
statutes are interpreted broadly to prescribe, one,
causing the use of the mail or wire communications, including email, two, in conjunction with
a scheme to intentionally defraud another of money or property. Three, by means of a material deception. Wire and mail fraud are
crimes on their own, but they also overlap with a
lot of other federal statutes. People get confused that
often the same conduct can give rise to a lot
of different crimes, based on the various things, and it's the exact same conduct. Essentially, if you use the
mail, telephone, or internet to defraud people, you can
also be charged with mail and wire fraud, even though
it probably constitutes regular fraud in a lot
of different contexts. In fact, the New York
Times just reported that a doctor in southern
California was accused of fraud for selling a cure to coronavirus which turned out to be
hydroxychloroquine and azithromycin. But the DOJ is pursuing a
lot of COVID-19 fraudsters using these criminal
statutes, for example, Keith Middlebrook, an actor
with an uncredited appearance in Iron Man 2 and Thor,
was arrested by the FBI for soliciting investments into a company he said would market
phony COVID-19 medication. Middlebrook promised investors
who spent a million dollars returns of 200 to $300 million
as a conservative minimum. Middlebrook promoted
his scheme on Instagram, where he had 2.4 million followers and was charged with wire fraud. The lesson here, don't take medical advice from non-medical professionals, even if they were in a Marvel movie. And also, sometimes don't trust even the medical professionals
who promote a cure that doesn't yet exist. But now is probably a
good time to talk about the difference between false
advertising and puffery, because a lot of people
say that they'll see an ad and they'll think than
it's completely fraudulent, but advertisers have a lot
of leeway, because again, we generally don't want
to prosecute people for just saying ideas or having opinions. And one of the big issues in this context is objective, factual
statements which are false compared to subjective,
opinion-based statements. People who are selling
products have a right to talk them up, and even
embellish how great they are. However, the government has
the power to stop companies from making claims that
are objectively false or factual claims without basis. So let's choose an example at random. One of those random
late night infomercials featuring, I don't know, My Pillow. - Hello, I'm Mike Lindell,
inventor of My Pillow. - This is a classic example of both potentially false advertising and puffery, the sort of building up of a product that doesn't constitute
actionable statements. Puffery consists of general description, such as top quality, best,
or America's favorite. So Michael Lindell, creator of My Pillow, and pal of president Trump,
has filled many infomercials where he says his pillow will. - [Michael] Ensure you get
the best sleep of your life. - Now, this example has nothing
to do with the fact that president Trump hosted this
guy in the Rose Garden, but the statement is likely just puffery. No one can truly prove
that a $40 My Pillow is gonna be better than
the pillow that you buy at Big Lots for five dollars. It's a largely subjective statement, but our friend Mike Lindell
also ran into problems with consumer protection
advocates when he made specific health claims about My Pillow. Lindell's many
advertisements asserted that the pillow could help
people manage migraines, anxiety, multiple sclerosis, PTSD, restless leg syndrome,
acid reflux disease, fibromyalgia, snoring, and
many other medical conditions. Hey Dr. Francis, can a pillow
cure any of those ailments? - (sighs) No, it cannot
cure those ailments. Look, just use a pillow
for the same reason everybody else does, companionship. - Yeah, so a consumer
protection group sued Lindell for false advertising, and
although Lindell claimed no wrongdoing, he settled
the case for almost a million dollars and removed the assertions that My Pillow would help with
some of those diseases. So what are the most
common ways to get sued for false statements and bad products? Well, the most common is
probably consumer fraud. People who make false or
misleading product claims face legal action from
both government authorities and private consumers, and
although people on the internet often say this is the
kind of thing that should give rise to a class
action or we're gonna have a class action to sue
China or president Trump, this context in the consumer
protection environment is the kind of thing that often gives rise to class action lawsuits,
and several companies are in hot water over outlandish claims that they made that they
can cure coronavirus. Take natural health
expert Sherrill Sellman. She appeared on televangelist Jim Bakker's television show to sell
the Silver Solution, a cure for COVID-19, supposedly. - Well let's say it hasn't
been tested on this strain of the coronavirus, but it's
been tested on other strains of the coronavirus and has been able to eliminate it within 12 hours. - And she made claims
that the Silver Solution has been proven by the government
that it has the ability to kill every pathogen it
has ever been tested on, including SARS and HIV. Jim Bakker then holds up the product and suggests viewers pay
$80 to $125 to the show in exchange for a bottle
of Silver Solution. The solution is a form of
colloidal silver, a liquid supplement that contains
very tiny pieces of silver, and not surprising, ingesting silver can because be quite dangerous. Here's a photo of someone who took silver nose droplets for years. Hey Dr. Francis, can silver
cure every disease known to man? - No, it won't, but
even if it did, I mean, sulfuric acid kills a lot of microbes. I wouldn't recommend taking that either. - Yeah, so this is potentially
a very clear-cut case of consumer fraud, and
the DOJ in several states have actually sent Bakker
cease and desist orders for falsely promoting that Silver Solution can cure, kill, or deactivate coronavirus and boost elderly
consumers' immune systems, when there is in fact no
vaccine, no pill, or potion or other product that can
treat or cure coronavirus. And similarly, state
and federal regulators have also moved to stop
radio host and noted idiot Alex Jones from selling fake cures, including a toothpaste
that contains nano-silver. - The patented nano-silver we have, the Pentagon has come out and documented, and Homeland Security,
and said "this stuff kills "the whole SARS corona
family at point blank range." Well of course it does,
it kills every virus. - And after the inevitable
cease and desist letters, Jones issued a disclaimer where he walked back a lot of his claims. However, the videos of
these products are still up, so Jones may not be out of hot water, but this is a situation that he finds himself in with some frequency. - Now is the time to get
ready and to get prepared with emergency supplies
and items that are known to boost your immune system. - Now also there are causes of action for things called unfair
business practices, which overlap often with fraud
but are not exactly the same. State and federal laws
allow a business to be sued for unfair deceptive trade practices. The phrase "unfair trade
practice" means any business practice or act that is
deceptive, fraudulent, or causes injury to a consumer. So for example, a
Florida elected official, of course Florida, Bryant
Culpepper claimed that you could kill COVID-19 by aiming your
hair dryer up your nose. - So you hold a blow dryer
in front of your face and you inhale with your nose and it kills all the viruses in your nose. (sighs) - Hey Dr. Francis, does a hair
dryer kill the coronavirus? (sighs defeatedly) Yeah, so incredibly dumb information, because of course, elected
official in Florida, but can he be sued? Well, probably not, like I said before, it's not illegal to say
something dumb or false, and Culpepper is giving
out bad information, but he's not selling a
product like a special COVID-19-killing hair dryer. He's just a Floridian. Never change, Florida man, never change. But it can be hard to get
the word out on YouTube when we're dealing with
sensitive subjects, because videos like these get demonetized, but some people need to
be told not to inject themselves with bleach, namely
the entire state of Florida, which is why my creator
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Nebula removes this ad entirely and replaces it with
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