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01/10/2017

Be Wary What You Research: You Might Get Sued

by Craig M. Klugman, Ph.D.

Peter Cohen, Clayton Bloszies, Caleb Yee and Roy Gerona published an article in the journal Drug Testing and Analysis in April 2015 explaining the results of their testing of supplements. The researchers found that a compound, BPMEA, appeared in nearly half the supplement brands they examined and since neither the FDA (supplements are not currently under the purview of the FDA because they are not food products nor are they medications) nor the European Drug Agency has found BPMEA safe for human consumption, no one should purchase these supplements.

The result? Cohen and his colleagues were sued by Hi-Tech pharmaceuticals for libel and defamation of their products. Cohen et al won because the truth (i.e. facts) are a defense and thus are not libel under a lawsuit. Winning, however, was not the aim of the suit. The goal was that “the long and costly legal battle will scare away other academics from investigating the supplement industry.” The CEO of Hi-Tech is also counting on President-elect Trump carrying through on his promise to “open up” libel laws so that the truth is no longer a defense.

From an academic and scientific perspective, this is the equivalent of Galileo being forced to recant that the Earth revolved around the sun because such “heresy” violated belief. For decades now, what gets researched has been heavily influenced by what gets funded. If there is no money to look at a topic, then it is difficult for it to be studied. Thus, funders have been able to control, to some extent, the subjects of scientific study. Ethically, researchers are supposed to have “academic freedom,” a term defined by John Dewey in the 1915 AAUP Declaration of Principles as “Freedom of inquiry and research, freedom of teaching within the university or college, and freedom of extra-mural utterances and action.” In other words, the researcher has the right to choose what she or he studies and the liberty to disseminate the accurate results. In fact, the researcher has an obligation to disseminate the results.

However, we have entered the bizarre world of “post-truth” where what is real is what some authority (usually male, usually wealthy, usually white) tells us it is rather than what objectivity or science proves it to be. Bullying of scientists and reporters who disagree with Newspeak and Doublethink (read 1984 if you aren’t familiar with the terms) is likely to increase in an era when officials are re-considering whether the federal government should fund science, removing libel and defamation protections for truth telling, and allowing money (in the form of claimed, but not verified, wealth) to be the arbiter of right.

The courts ruled well in this case, finding that the researchers proved their case. But the cost in money and time did not help the scientist’s careers, well-being or their scientific interest. The other side had nearly unlimited money and time. The threat is that the powers-of-wealth will sue us into submission and while it doesn’t cost them much, it can cost us everything.

If a subject affected by your research came after you, would your university pay legal expenses? Cover any fines or penalties and to what extent? Do you have a union that would have your back? Do we need academic malpractice insurance? You might be surprised by how little support we have.

In the future, if scientific studies disagree with a company’s position or an official’s political stance, it’s possible that the truth will not set you free.

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