Carbolic smoke balls and snake oil: Patanjali joins a long history of dubious medicinal advertising

In 1893, Clark Stanley gained attention when he introduced the American public to a product that he claimed would cure a variety of ailments, pain, lameness, sprains, animal bites and more.

Appearing at events known as medicine shows, he would put snakes in boiling water. When the oil rose to the top, he took it out and mixed it with a special liquid. Stanley came to be known as the King Rattlesnake.

But in 1916, it was exposed as a fraud. Their mixture was found to have no medicinal value and snake oil became synonymous with fraudulent products with misleading marketing.

In April, when India’s Supreme Court ordered Patanjali owner Ramdev and his partner Balkrishna to make an unconditional public apology for their misleading adsserved as a reminder that misleading public notices in the pharmaceutical industry have a long history, as do attempts to curb them.

Clark Stanleys Snake Oil Liniment was not the only dubious medicinal product on the American market at the time. Dr Morses Indian root pills, Lydia Pinkhams herbal medicine and Kickapoos Indian Sangwas medicines were also advertised with exaggerated or outright false claims about their curative abilities.

These concoctions became known as patent medicines, although legally they were not patented and their medicinal properties were unproven.

However, within a few years, growing concerns about these products and advertisements created a widespread public backlash. In 1905, Colliers Weekly magazine published an exhibition entitled The Great American Fraud. The series aimed to expose the dubious business practices of major manufacturers of patent medicines.

The inflated claims of these drugs were shown to be pseudoscience, supported by scant medical evidence. The series also established the serious public health risks posed by these remedies.

The exhibition led to two important developments. In 1906, United States President Theodore Roosevelt signed the Pure Food and Drug Act to address the problem of misleading advertisements and dangerous products. This law required accurate labeling of food ingredients and pharmaceutical products.

Second, and more importantly, the dangers of magical remedies were etched into the public’s imagination and experience. Snake oil came to be widely accepted in various dictionaries as something that someone is trying to sell you, but is not effective or helpful.

Across the Atlantic, the UK had its own share of patent medicines. By the 19th century, misleading advertising had been unable to be curbed by regulations such as the Poisons and Apothecaries Act 1868, the Sale of Food and Drugs Act 1875 and the Indecent Advertising Act 1889.

Although the Sale of Food and Drugs Act 1875 regulated adulteration, it did not address the growing problem of misleading pharmaceutical advertisements. Similarly, while the Poisons and Pharmacy Act 1868 empowered the Privy Council to add poisons to the schedule under the Act, it did not mandate labeling requirements. The Indecent Advertising Act only addressed advertisements that were indecent or obscene in nature.

A typical example of the prevailing misleading patent medicine advertisements was the case of Carbolic Smoke Ball. In the 19th century, Frederick Augustus Roe introduced the Carbolic Smoke Ball, which was advertised as a preventative remedy against ailments such as flu, colds, coughs and asthma.

The device a small sphere with a nozzle would release carbolic acid when pressed. It gained widespread currency in 1889-90, when the Russian flu had taken hold of Britain. This was despite the corrosive nature of carbolic acid, which was often used in surface cleaners.

In an advertisement, Roe claimed that Carbolic Smoke Ball Co. will pay a 100 reward to anyone who hires… Flu, Cold after using Carbolic Smoke Ball. A woman named Mrs Carlill saw the ad, bought the smoke ball and used it as directed. When he later caught the flu, he sued the company to claim the 100 reward.

This culminated in Carlill vs Carbolic Smoke Ball judgment of 1892. In law schools in many places, this is the first case taught in the contract law course. The outcome of the case is well known: Mrs. Carlill received the 100 reward, although Carbolic Smoke Balls claim that the advertisement was inflated.

But the importance of this case goes far beyond contract law. He deflated the extraordinary claims made by Roe about the effects of his smoke balls.

After the case, a greater restriction of carbolic acid was called for. In 1893, a member of the British Parliament, John Macdonna, cited 230 deaths in support of his motion to regulate the sale of carbolic acid under the Drug and Poison Act 1868.

Carbolic acid was added to the Act’s schedule as a poisonous substance only in 1899. Finally, the UK Food and Drugs Act 1938 marked a turning point in making mislabelled food or drugs or illegal misleading.

Closer to home, in India, advertisements for snakebites, diabetes, fertility and other fantastical claims were rampant throughout the 19th century. The problem led to the formation of a Drug Inquiry Committee in 1930. It submitted its report the following year. Among other things, it recommended banning advertisements related to aphrodisiacs, venereal diseases, remedies for women’s ailments, cures for cancer, leprosy, and tuberculosis. The report led to the first law regulating drug advertising.

Nine years later, in 1940, the Drugs and Cosmetics Act was passed. But the Act did not create an effective framework to address the widespread problem of misleading advertisements. The 1940 Act did not cover Ayurvedic advertisements and newspaper advertisements under its purview.

The Magical Drugs and Remedies (Objectionable Advertisements) Act 1954 was soon to be introduced to specifically target advertisements. The 1954 Act remains on the books today.

However, breaches in the application of these laws have been reported time and time again. Book by Dinesh Thakur and Prashant Reddys, the Truth Pill, illuminates many of these lapses. The Patanjali case is another example of this.

Nikhil Pratap is an advocate based in Delhi