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Comment by logicalmonster | Hacker News Reader

I'm not a fan of homeopathic "treatments", but if the main argument for this trial is "the products were too close to others" that seems like a bullshit case. Something's legality shouldn't hinge on its distance from other legal things or arrangement in a store. Either a thing is legal or illegal. Moving it 5 feet to the right or 2 shelves down shouldn't change its legality if it's already a legal product with whatever government warning labels and disclaimers are required.

What's next? Suing an art supply store because they had markers on the same shelf as highlighters?

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> the products were too close to others" that seems like a bullshit case

It's deceptive. If you're in a pharmacy and see a number of cold and flu medicine grouped together on one shelf, you'd be pretty pissed if you bought one and didn't realize that it was just Mike & Ikes with no medicinal ingredients.

Your marker and highlighter example is flawed because those are both useful for writing and are usually distinct in packaging and form.

You're arguing about an evolution in legal opinion that very few people really understand.

Often, in the past, judges would use a test of 'would a reasonable person be deceived by this?' and come out on your side.

Increasingly, due to people calling for increasingly less government control, the test is becoming 'does the government have the right to tell a store owner which shelves a legal product can be on?' and come out on the other side.

I can see both sides, but in general, a government that protects 'reasonable consumers' over the interests of businesses seems preferable.

> I can see both sides, but in general, a government that protects 'reasonable consumers' over the interests of businesses seems preferable.

Agreed. People rallying against "big government" annoys me because they're invariably for government intervention when it aligns with their personal belief.

I do not think that the government should regulate information or speech, especially with the express purpose of censoring things[0]. I do think the government should regulate food, medicine, or other commercial or consumer goods that are subject to counterfeiting/fraud or where perversion of quality affects safety or longevity. When I go to the pharmacy, I want to feel confident that the medicine I'm purchasing meets a high bar and is both safe and effective. I want to feel confident that the avocado oil I'm purchasing is actually "Avocado Oil" and not rancid or adulterated. Etc.

[0] For example, the Canadian government is trying to push through sweeping legislation that would give them the ability to regulate the Internet: https://www.theglobeandmail.com/politics/article-what-is-bil...

> are usually distinct in packaging and form.

That's the key point. It's deceptive (and should probably be illegal) to make a product look like medicine. It doesn't matter where you place it, if you put a banana on the side of the aspirins no one is going to complain it didn't cure their headache.

> Suing an art supply store because they had markers on the same shelf as highlighters?

I dunno, it seems a bit more like the store getting in trouble for having lead paint right next to the section labeled "edible paints!" without much of a line between them. In my grocery store (Wegmans) they're slapped in the general "cold and flu" section.

See https://cdn.arstechnica.net/wp-content/uploads/2022/10/paste... from the article.

If there is an aisle that says Cold Medicine, and you put a product that is in fact not cold medicine but something designed to look like cold medicine and trick people into buying it because they think it is cold medicine, then it sure looks like you are purposefully trying to deceive people.

My analogy. You go to REI or wherever to buy some carabiners and rope for your next rock climbing trip. Intermingled amongst these are carabiners made of cheap pot metal and ropes intended for [tying down cargo] rather than climbing.

Both products are legal, but are definitely not deserving of similar placement within the store.

(EDITED)

I thought rigging ropes and climbing ropes were the same ropes. No?

I think I used the wrong term. Or a vague one. I'm talking about the difference between a rope used to tie down cargo in a truck and one used by a climber for safety.

Doing a quick search for "rigging rope" shows me all sorts of tree-climbing ropes as well, so I should have said "cargo hold down rope" or something.

I don't believe so. Climbing ropes deliberately have a one-time certain amount of stretch to them. (And if you take a fall that uses that stretch you retire the rope.)

While climbing is not my thing I definitely know REI sells the climbing carabiners with the climbing stuff and the lightweight equipment ones in a different part of the store. I don't need a big safety-rated bit carabiner to attach a 4oz sitting pad to the outside of my pack!

Oregano is a legal substance. But mistakingly buying then selling oregano, thinking it is weed, is still illegal and still considered drug dealing in the eyes of the law.

Carrying a hairbrush is legal in New York City. But walking into a New York City bank with a hairbrush in your sweatshirt pocket and pointing the handle at the cashier is justification for the use of deadly force even if you do not say a word.

Not all that is legal, is legal in all contexts.

I guess the problem to me is that the labeling on the homeopathic products I’ve seen that indicate that they aren’t FDA approved either isn’t there or is in tiny print hidden in an obscure spot. In my opinion as a consumer I feel that for something that has potential to be harmful there should be a warning akin to the surgeon general’s warning visible on the medicine container. Note that I still would find it deceptive from a consumer protection standpoint if there was almond milk labeled only as “milk” directly next to the animal milk with no indication it was almonds. Similar reading on the current battle with plant-based milks: https://www.networkforphl.org/wp-content/uploads/2019/03/Iss...

Eh I mean it’s a white liquid that goes with coffee and cereal. Who cares where it really came from unless you’re allergic or something? None of the three claims in the pdf say that Almond milk was being labeled “milk”, but the dairy milk corporations are trying to push that narrative that you’re being tricked. Labeling it as “soymilk,” “almond milk,” and “coconut milk” and federal courts found those three terms to be a fine use of the word milk because they included the nut name in the description. Big milk wants to force all imitation milk to be labeled with the word imitation, but when it’s already labeled with the nut name where it comes from, forcing them to add the word “imitation” on top of that seems excessive.

> I guess the problem to me is that the labeling on the homeopathic products I’ve seen that indicate that they aren’t FDA approved either isn’t there or is in tiny print hidden in an obscure spot.

I understand that the labeling on all kinds of products is often bad and they go out of their way to get away with as much as they can, but I think this point underscores that this is a backwards approach. In real life, you don't prove a negative.

It shouldn't be up to homeopathic treatments to prove that they're NOT FDA Approved, it should be up to FDA Approved Medications to prove that THEY ARE FDA Approved.

You should assume that nothing is FDA Approved unless verified.

I can't speak to the legality but the current setup is shady. I am much more well informed about medications than the average and very anti homeopathy. It still takes me 5 minutes of reading the fine print of several bottle to avoid accidently picking up a homeopathic treatment.

It might be better if there was just a regulation that the active ingredient(s) in each product had to be printed on the front of the box, in letters as big as the rest of the branding. That would correctly label homeopathy ("water"), as well as chase some of the woo out of actual medicine.

The argument is that CVS and Walgreens have aisles dedicated to medicine. If you go into one of those isles, it would not be unreasonable to expect the contents of those aisles to be, at the minimum, regulated and tested to medical standards, rather than the significantly weaker standards applied to supplements and homeopathic treatments.

The closer analogy here would be to go to an art supply store and buy paint tubes, only to find that you've accidentally bought ones filled with water because they were placed directly next to the real ones. You'd be rightfully annoyed in that scenario, wouldn't you?

So person who stocks and or plans shelves needs to be an expert on obscure legal theory?

Store layouts are heavily researched and engineered at the corporate level. "Little old me had no idea" isn't an argument that's gonna be easy to make.

No. The person planning the shelves needs to refrain from deceptive practices. There is no doubt of ignorance or coincidence in this case.

I would hope the person responsible for creating shelf plans for the pharmacy has at least a cursory understanding of medicine.

No. CVS and Walmart are massive chains, with thousands of pharmacists and entire teams dedicated to store layout. They dictate stocking and planning, and it is not remotely unreasonably to expect them to consult the experts (including legal experts) they work with.

Also, none of this requires awareness of some obscure DC law. That's just the justification for this particular court case. "Don't stock fake medicine next to real medicine" strikes me as a somewhat common-sense thought.

> No. CVS and Walmart are massive chains, with thousands of pharmacists and entire teams dedicated to store layout.

Personally I hate that this line of reasoning has been brought up because I think it's a bad argument based on reality. In the real world, it's true that big companies spend thousands of hours putting together rules and guidelines from experts. But then their fancy policies and guidelines are passed down the chain through less and less trained people until the ultimate task arrives in the hands of perhaps a minimum wage high-school kid with maybe 30 seconds of training.

A real solution should be foolproof and not rely on proper placement through a game of telephone. If that's the system that you're arguing for, IMO it's a very bad one that guarantees human error.

> But then their fancy policies and guidelines are passed down the chain through less and less trained people until the ultimate task arrives in the hands of perhaps a minimum wage high-school kid with maybe 30 seconds of training.

Nobody (either in this thread or in the case) is attempting to sue minimum wage high school kids for placing homeopathic products on the wrong shelf.

The claim (which is attested by both the case and independent anecdotes in this thread) is that, on a corporate level, both CVS and Walmart have made it their official policy to put homeopathic products in the same aisles and shelves as actual medicine. That kind of corporate policy clearly has made its way through the game of telephone.

In other words: I don't have an opinion in this context on the "right" solution. I only know that the current policy has successfully placed fake medicine on real shelves, and that the lawsuit we're discussing identifies the appropriate defendants (the corporate entities themselves, not a pimply 17 year old).

> Suing an art supply store because they had markers on the same shelf as highlighters?

If the art store had an entire white board shelf that went "Whiteboard markers (dry erase)", "Whiteboard markers (dry erase)", "Whiteboard markers (dry erase)", "Whiteboard markers (dont erase)", "Whiteboard markers (dry erase)", "Whiteboard markers (dry erase)" I would think a lawsuit would be appropriate.

If you have this[1] on a shelf between Clotrimazole and Miconazole then it really seems like there is an intent to confuse things (though I should point out it's not purely homeopathic, but arguably also naturopathic since there is also tea tree oil in it).

1: https://www.cvs.com/shop/yeast-gard-gel-treatment-prodid-924...

Are OTC FDA tested and approved medication packages required to bear any kind of standardized and highly visible mark or symbol? If so, what does this mark look like? Is there any effort to publicize this if it exists? I genuinely don't know.

It seems like the real core of this issue isn't that homeopathic medicines' exist or are in the wrong location in the store, but that approved and scientifically tested medicines aren't labelled well enough to distinguish them from other products (homeopathic treatments, nutritional supplements, etc)

There probably should be 1 clear symbol for OTC medication that is common and well known and that children are taught to avoid touching.

Certainly isn't anything on the front; here's a non-homeopathic remedy[1] that might be adjacent to the homeopathic one. The back has a "Drug Facts" which I believe is FDA required, but homeopathic remedies often have a visually similar table with an asterisk (e.g.[2] also sold at CVS)

[edit] The "Drug Facts" label is an FDA requirement[3] for OTC drugs, but apparently it's totally okay to copy the format as long as you add a "not FDA approved" asterisk? Even if it's not okay, the certainly isn't pursuing enforcement here...

1: https://www.cvs.com/shop/cvs-health-clotrimazole-3-vaginal-c...

2: https://www.cvs.com/bizcontent/merchandising/productimages/h...

3: https://www.fda.gov/drugs/information-consumers-and-patients...

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