{"id":2450,"date":"2019-03-12T14:25:20","date_gmt":"2019-03-12T18:25:20","guid":{"rendered":"http:\/\/harvardjlg.journalshls.wpengine.com\/?p=2450"},"modified":"2019-04-03T15:19:58","modified_gmt":"2019-04-03T19:19:58","slug":"goop-and-the-legal-pitfalls-of-womens-wellness","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jlg\/2019\/03\/goop-and-the-legal-pitfalls-of-womens-wellness\/","title":{"rendered":"Goop and the Legal Pitfalls of Women\u2019s Wellness"},"content":{"rendered":"

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Goop,<\/a> Gwyneth Paltrow\u2019s e-commerce empire, recently settled a consumer protection lawsuit to the tune of $145,000 in civil penalties<\/a>. The suit was brought in September of 2018 by ten prosecutors from the California Food, Drug, and Medical Device (FDMD) Task Force in response to what they characterized as false medical advertising claims<\/a>.\u00a0 Prosecutors focused on two particular Goop wellness products<\/a>: a (now-infamous) vaginal egg said to \u201cbalance hormones, regulate menstrual cycles, prevent uterine prolapse, and increase bladder control\u201d and a blend of essential oils marketed to prevent depression.\u00a0 Some commentators viewed this settlement as a victory, including legal scholar and professor Timothy Caulfield<\/a> (author of the book, Is Gwyneth Paltrow Wrong About Everything?<\/em><\/a>). \u00a0On NPR<\/a> the week of the settlement, Caulfield crowed, \u201cI am thrilled\u2026 it [sends] a powerful message.\u201d\u00a0 But just what powerful message does this legal \u201cvictory\u201d send?<\/p>\n

It is easy to laugh at the idea of a vaginally-insertable jade or rose quartz egg serving as a female cure-all, or to ridicule both the marketers and consumers of a product entitled \u201cInner Judge Flower Essence Blend\u201d that claims to cure depression when added to bathwater.\u00a0 This kind of health-centered consumer product has become more common as wellness has taken over the millennial marketplace for food, fitness, clothing, travel destinations, and more<\/a>.\u00a0 Like many trends read as \u201cfeminine,\u201d wellness is often the target of mockery.\u00a0 It was described in a recent New Yorker article<\/a> as \u201ca kind of prosperity gospel for the witchy hipster who wants to make a big career move, have perfect skin, and treat her Tinder date to Hot Sex Milk made from ho shou wu.\u201d\u00a0 Much of Goop\u2019s success has been built by capitalizing on<\/a> women\u2019s desire to feel better\u2013\u2013to be cleansed, healed, and restored.\u00a0\u00a0 However, the crystals, sage, and mushroom teas on offer at the Goop store become less of a laughing matter when one considers the alternatives offered to women by hegemonic Western medicine.<\/p>\n

It is now recognized<\/a> in medical and scientific literature that there are substantive gender<\/a> gaps<\/a> in medical knowledge. \u00a0Prior to World War II, the U.S. Food and Drug Administration (FDA) excluded women<\/a> from human clinical investigations in order to protect them from the rigors of clinical testing. \u00a0This exclusion continued throughout most of the 20th<\/sup> century as generation after generation of researchers found it too costly and complex to expand studies across genders and proceeded instead<\/a> on the \u201cimplicit assumption that outcomes in men would be adequate proxies for outcomes in women, despite the\u2026physiologic, anatomic, and metabolic differences between the genders.\u201d \u00a0Compounded by the fact that research on \u201cwomen\u2019s conditions\u201d (like cervical cancer<\/a>, pregnancy<\/a>, and autoimmune disorders<\/a>) is chronically underfunded, this means that<\/a> \u201cmodern medicine is predicated on a startling lack of information about\u2026women.\u201d<\/p>\n

The disparity continues<\/a> in medical schools, where women\u2019s illnesses are taught differently, if at all. \u00a0In a report to the UN, one expert noted that \u201cuntil very recently\u2026teaching medical students how to do competent, sensitive and painless breast and internal examinations for women has not been an integral part\u201d of the curriculum.\u00a0 \u201cThis explains<\/a> why women expect and experience pain during what should be routine internal examinations.\u201d \u00a0This approach to pain has downstream effects in day-to-day medical practice<\/a>.\u00a0 Pain medication is prescribed at lower<\/a> rates<\/a> for women and, when it is given, it is prescribed later and at lower doses than it is for men. \u00a0The impact is even greater for women of color<\/a>, low-income women<\/a>, women for whom English is not a first language<\/a>, women in the military<\/a>, and women who are considered too beautiful<\/a> to be sick\u2013\u2013to say nothing of the gaps in care faced by trans and nonbinary individuals<\/a>. The disbelief of women\u2019s pain ruins so deep that, in one study<\/a>, women were seven times more likely than men to be discharged from the hospital while in the middle of a heart attack.<\/p>\n

In addition to misreading women\u2019s pain, traditional medicine is sometimes a cause of women\u2019s pain. Gynecology alone reveals a startling number of abuses. A recent study<\/a> found that one in five women who underwent medically directed hysterectomies did not require the procedure.\u00a0 For well over a century<\/a>, medical professionals have worked jointly with legislatures<\/a> and with the U.S. Supreme Court to carry out the forced sterilization<\/a> of women. \u00a0As recently as 2010<\/a>, doctors in California were performing bilateral tubal ligations on female prison inmates without consent<\/a>.<\/p>\n

When women do give birth, mounting evidence<\/a> shows that they are often subject to sexual assault and various forms of coercion during the process, a phenomenon known as obstetric violence<\/a>.\u00a0 Some believe that this is a contributing factor<\/a> to America\u2019s maternal death rate (the highest in the developed world). \u00a0Recent cases like that of USA Gymnastics doctor Larry Nassar<\/a> and University of Southern California physician George Tyndall<\/a> have put a spotlight on the problem of medical provider sexual abuse. Last month, a woman who had been in a clinic in a vegetative state for fourteen years unexpectedly gave birth<\/a>, leading to the arrest of one of her healthcare providers after DNA tests showed he was the baby\u2019s father. Given that women risk ridicule, misdiagnosis, and even assault when going to the doctor, is it any surprise that some might prefer to stay home with a rose quartz egg, soak in a bathtub that smells like lavender, and hope for the best?<\/p>\n

When things do go wrong at the doctor\u2019s office, women find little recourse in the courtroom.\u00a0 In abuse cases, there is a pattern<\/a> of medical boards covering up offenses, coupled with an unwillingness on the part of judges and juries to punish medical professionals for their misconduct.\u00a0 In August of 2018, a case made headlines<\/a> in which a Texas doctor raped a sedated patient and unplugged the woman\u2019s nurses\u2019 call button before committing the assault.\u00a0 At trial, the doctor\u2019s attorney stated, \u201c[H]ere we have this Latina woman with her fake boobs that came on to that little nerdy middle-aged guy and he lost his mind.\u201d\u00a0 The doctor was convicted but received no prison sentence<\/a>.<\/p>\n

In malpractice cases, plaintiffs come up against a well-documented<\/a> conspiracy<\/a> of silence<\/a>, a tradition in which physicians refuse to testify against one another, making it challenging to obtain the competent medical testimony required for conviction. \u00a0Physician defendants have proven willing to revive the specter of hysteria<\/a> in order to discredit female victims.\u00a0 In one notable case<\/a>, a woman died from sepsis<\/a> after a surgical pad was left inside of her abdomen following a hysterectomy. The defense introduced evidence of the victim\u2019s chronic depression and put forth a theory that she had stolen the surgical pad, taken sleeping pills to suppress her gag reflex, and eaten the 19\u201dx19\u201d pad in a failed suicide attempt.\u00a0 This argument prevailed at trial and at an intermediate appellate court, even though medical testimony revealed that it was anatomically impossible.\u00a0 Against this backdrop, it seems incongruous, paradoxical, and perhaps absurd to prosecute companies like Goop.\u00a0 Is Gwyneth, be she fraudster or messiah, the villain that looms largest in this tableau?<\/p>\n

While professing a deep concern for women\u2019s health and safety, legislative reform efforts have often been too little, too late.\u00a0 Federal and state legislatures tend to assume<\/a> that women\u2019s health needs will be met by legislation targeting child and infant welfare. \u00a0In some cases, state legislatures have even partnered with medical interest groups to make it<\/a> more<\/a> difficult<\/a> for female victims to recover in medical malpractice suits.<\/p>\n

Meanwhile, on the regulatory front, the FDA conspicuously fails to regulate cosmetics<\/a>, household<\/a> cleaning supplies<\/a>, menstrual products<\/a>, dietary supplements<\/a>, sex toys<\/a>, and personal lubricants<\/a>.\u00a0 Many female entrepreneurs have tried to fill the gap created by the legal system.\u00a0 There has been a recent renaissance of women-owned menstrual product<\/a> and sexual wellness companies<\/a> striving to meet the needs of underinformed, under-protected female consumers by engaging in transparent and ethical design, manufacturing, and distribution processes.\u00a0 Following this targeted action against Goop, one is left to wonder what the future has in store for these female-fronted businesses.<\/p>\n

The concerns expressed by the California FDMD prosecutors are not entirely unfounded. Though the particular products at issue did not cause any adverse customer reactions, it is true that a rejection of reliable scientific and medical data can have real public consequences, as evidenced by the recent class action brought against EOS Lip Balm<\/a>.\u00a0 In an extreme form, ad campaigns<\/a> by alternative health companies can contribute to trends like the anti-vaccination movement, which has sparked health crises including the Washington measles outbreak<\/a>.\u00a0 Viewed broadly, the California enforcement action against Goop and the surrounding publicity could<\/em> be seen as a renewed commitment to truth in advertising, as a pushback against fake news and pseudoscience, and even as a kind of commitment to women\u2019s health and safety.\u00a0 But absent concerted efforts to address the health needs of women on the part of doctors, researchers, drug manufacturers, public health officials, and others in the traditional pantheon of power in Western medicine, and without sweeping legal and regulatory reform, this type of prosecution seems futile and arbitrary.\u00a0 It reveals not a fear of snake oil, but rather a deep unease that the peddlers of snake oil may no longer be exclusively sales men<\/em>.<\/p>\n

\n

Fiona Collins<\/strong>\u00a0is a first year student at Harvard Law School and an Online Content Editor for the\u00a0Harvard Journal of Law & Gender<\/em>.<\/p>\n

\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

Goop, Gwyneth Paltrow\u2019s e-commerce empire, recently settled a consumer protection lawsuit to the tune of $145,000 in civil penalties. The suit was brought in September of 2018 by ten prosecutors from the California Food, Drug, and Medical Device (FDMD) Task Force in response to what they characterized as false medical advertising claims.\u00a0 Prosecutors focused on […]<\/p>\n","protected":false},"author":3,"featured_media":2451,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-2450","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news"],"jetpack_featured_media_url":"https:\/\/journals.law.harvard.edu\/jlg\/wp-content\/uploads\/sites\/88\/2019\/03\/christin-hume-505815-unsplash.jpg","jetpack_shortlink":"https:\/\/wp.me\/peZQij-Dw","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts\/2450","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/comments?post=2450"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/posts\/2450\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/media\/2451"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/media?parent=2450"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/categories?post=2450"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/jlg\/wp-json\/wp\/v2\/tags?post=2450"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}