Common Law - The FindLaw Consumer Protection Law Blog

August 2009 Archives

5 Tips for Safety on Social Media Sites

Widely used social media sites offer scammers and spammers powerful new tools to spam you, maybe steal your identity, or perhaps do something more malicious. With new routes for them to find you, along with veritable goldmines of data within social media networks, some good old advice 2.0 can help you protect yourself from annoyance, identity theft, fraud or worse.

  1. Keep it to yourself. Don't give out personally identifying information. This applies to social networks which you think only include friends, just like it does to unsolicited emails. In addition to your social security number or any banking information, don't give out your full name, your address or your phone number. This information can be very helpful to someone looking to steal your identity. Also, for social networking sites, consider choosing a user name that is not your actual name. And remember that tweeting to the world where you are or where you are going can allow someone you'd prefer not meet to locate you or perhaps to spend some time with your house while you're on vacation.
    Also guard your log-in information for any social media network. Like they have done with many a website, "phishers" have thrown out lures of what appear to be actual MySpace, Facebook or Twitter webpages asking for your log-in information. They want it so they can hijack your account, mine it for any valuable information in your network and/or propagate spam (or more malicious) messages that will appear to come from you.
  2. Beware of strangers. What's good for kids at the playground is good for all of us online. That fetching man or woman who wants to friend you on Facebook might not be so friendly. False friends might be spammers just looking to get some traffic to their links, or they could have much more malicious goals. If you don't know them, and can't verify who they are from anyone you know and trust, don't friend them. Also know who you follow on Twitter. In addition to spam, tweets can contain malicious links. (See discussion below about knowing where you're going.)
  3. Beware of friends bearing strange gifts. We all have some strange friends. But when you receive messages from a friend bearing a subject line you would never imagine to come from that friend, think before you click. The same goes for an out of character tweet from someone you know. An incredible deal on Viagra coming from a friend unlikely to push Viagra on you is a good sign that your friend's account has been hijacked. Be particularly careful not to click on any links in such a message. It could be simple spam, but might have more nefarious ends, such as putting malicious programs onto your computer.
  4. If taking a short cut, know where you are going. Web site addresses (urls) sometimes get really long. To address this, nice tools such as tinyurl, and others came along and now allow us to provide a link with a shortened url. The problem is, however, that shortening the url can allow a scammer or spammer to mask where they are actually pointing you. Some of the shortening tools allow you to preview the actual url, however not all do. Preview the url if possible before proceeding. If you can't see where the link is going, don't go there.
  5. Know your privacy options and proceed accordingly. Social media tools allow you to adjust the level of privacy you want. Review the options and choose the highest level of privacy settings that will still allow the tool to serve its purpose for you. For example, you can get notifications allowing you to block any potential Twitter follower. Or you can adjust your Facebook privacy settings so that your basic listing (and photo) won't be publicly found through search engines. But these are often not the default settings, so find out exactly what your options are. If the privacy protections aren't enough for you, don't use the system. Otherwise, once you've chosen the privacy settings you desire, keep them in mind while you use the system.
    Also examine your web browser privacy settings, and consider upgrading to a newer browser which might offer more robust protections.

Strangulation Deaths Prompt Wave of Window Shade Recalls

Yesterday, the Consumer Product Safety Commission announced a wave of recalls resulting from strangulation deaths of children caught in the cords of multiple makes of window blinds.

The basic risk common to these recalls is that the blinds' cords, or beaded chains, particularly if freestanding, pose a danger to children who can get caught in them and be strangled. In particular, freestanding beaded cords from roller style and vertical blinds, along with cords attached to "Roman style" shades have been targeted as a strangulation risk.

In order of the number of units being recalled, here are the six recalls issued today:

  • Woolrich Roman Shades and ¼" Oval Roll-up Blinds, sold exclusively at Target and imported from China by Lewis Hyman Inc. This involves a total of almost 5 million units. A cord from the roll-up blinds is known to have killed one child. Another child was strangled by the cord of the Roman Shades. All of the Roman Shades are being recalled, as well as the roll-up shades that do not have a release clip for the cord. For more information, see the CPSC recall notice.
  • Roller Shades distributed by distributed by Lutron Electronics Co. Inc. and sold by specialty dealers and Expo Design Centers nationwide. No incidents have been reported. 245,000 units are being recalled. For more details, see the CPSC recall notice.
  • Thermal Sailcloth and Matchstick Bamboo Roman Shade, sold at Target and imported from China by Victoria Classics. No incidents have been reported. 163,000 units are being recalled. For more details, see the CPSC recall notice.
  • Melina Roman Blinds, sold at Ikea and manufactured in Taiwan. One near strangulation has been reported. All 120,000 units are being recalled. For more details, see the CPSC recall notice.
  • Roman Shades, sold through Pottery Barn Kids catalog and on Pottery Barn's website and manufactured in China and Hong Kong. One near strangulation has been reported. All 85,000 units are being recalled. For more details, see the CPSC recall notice.
  • Horizontal Blinds, Vertical Blinds and Cellular Shades made by Vertical Land Inc. and sold at Vertical Land stores in Florida. In 2006, a child died by strangulation in the cord of a set of the vertical blinds. A total of 30,000 units are being recalled. For details, see the CPSC recall notice.

Related Resources

Bud Light 'Fan Cans' Expelled from Some Colleges

Anheuser-Busch Inbev is pulling its 'Fan Cans' promotional campaign from college campuses which objected to it. The campaign features Bud Light in school colored cans. Federal Trade Commission (FTC) pressure also appears to have played a part in Anheuser-Busch's decision.

The AP reports that the FTC took issue with 'Fan Cans' being marketed on college campuses because the FTC requires that 70% of an alcohol advertisement's audience be 21 or older. As Janet Evans, an attorney responsible for alcohol marketing issues at the FTC, stated, "[w]hen you've got a college campus audience you've got a very large number of persons who are below the legal drinking age there, and in addition, you've got a population that engages almost exclusively in binge drinking."

The promotion was timed to coincide with the begining of college football season. According to the Wall Street Journal, Anheuser-Bush sent promotional materials to the schools, including one making clear that: "This year, only Bud Light is delivering superior drinkability in 12-ounce cans that were made for gameday." (Note that's superior drinkability, rather than mere "drinkability," a tag line which for unknown reasons does not seem to make people want to drink more Bud-Lite. )

Not surprisingly, many school officials were not eager to crack open a Fan Can. Cans with school colors don't mesh well with attempts to curb binge drinking and drunk driving on campus.

According to the AP, at least 25 universities complained to Anheuser-Busch about the program. In addition to concerns for the health of their students, many schools also expressed concern for their trademarks, which they feel would be infringed by the 'Fan Cans.'

If you're over 21, you'll still be able to get that "superior drinkability" in gameday ready cans through retail outlets where purchasers must be 21 years old.

The Consumer Product Safety Commission (CPSC) is again urging all parents and caregivers to immediately stop using many convertible "close-sleeper/bedside sleeper" bassinets made by Simplicity, Inc. Since an August 2008 recall, the CPSC has learned of two more infants who died by suffocation and strangulation in the bassinets.

This alert applies to 3-in-1 and 4-in-1 convertible bassinets manufactured by Simplicity, including those rebranded with the Graco logo and Winnie the Pooh logo licensed by Disney.

Affected bassinets were manufactured before May 18 of 2008. For a list of model numbers and how to identify problem bassinets, see the CPSC’s alert notice.

That brings the total of known infant deaths in the Simplicity close-sleeper to four.

The deaths reported by the CPSC in August of last year included a four month old and a five month old who were strangled when they became trapped between the bassinet’s metal bars.

The newly reported deaths include:

  • the September 2008 death of a two month old girl who suffocated after becoming trapped in a pocket that formed near the velcro fasteners of the bassinet’s adjustable fabric; and
  • the January 2009 death of a six month old girl died after becoming trapped in the bassinet’s bar openings when the velcro straps were not fastened.

The CSPC hse also received word of a three week old and a ten week old whose heads became stuck between the lower bassinet bar and the mattress support. Caregivers freed these two without injury.

Parents or caregivers using the bassinets should immediately stop. They can be returned to the retail store where purchased.

First Part of New Credit Card Laws Take Effect

Portions of the Credit CARD Act of 2009 goes into effect today. The much discussed credit card reform passed this year seeks to ban certain unfair practices and provide cardholders with clear and understandable terms.

In May, President Obama signed the Credit Card Accountability, Responsibility, and Disclosure Act (Credit CARD Act) into law.

The new rules come into effect in three waves. First, on August 20, 2009 rules regarding disclosure of contractual changes and when companies can count payments as late go into effect. Most of the Act's new protections go into effect in February of 2010, and a few provisions take effect in August of 2010. For the full list of reforms and when they take effect, see this Treasury Department memo summarizing the changes.

The following new rules begin tomorrow:

  • Advance notice of rate increase and other changes is required. Now, card companies must give 45 days notice of changes to the annual percentage rate charged, and of other significant changes in the terms of the credit card agreement. Examples of such changes include increases in fees or finance charges.
  • Notice of contractual changes must include notice of the right to cancel. When cardholders get notice of changes to their cardholder terms, they must be allowed 45 days to cancel the agreement. Such a cancellation cannot be deemed a default by the card issuer. The issuer also cannot force cardholders to pay off their entire balance should they cancel.
  • Payments may not be considered late unless statements are mailed or delivered at least 21 days before the payment due date.

If you want see how (and whether) your credit card company is complying with the new rules that will eventually face all cards, check out BillShrink's page on which cards comply with the credit card bill of rights.

4 Job Search Scams to Avoid

With more people out of work, there are more targets for job search scam artists. As those looking for work find themselves in more dire need of new employment, they can be particularly vulnerable to such scams.

Here are four scams to watch out for:

  1. Work at home schemes. An oldie but a goodie. Does making money hand over fist while sitting at home sound too good to be true? That's because it is. Huge alarm bells should ring if anyone offers such a job but asks for your bank account information or for an up-front fee payment.
  2. Job offers that ask you to pay a fee. This should be a huge red flag. Some scam artists pose as potential employers who need you to pay a fee to cover the background check, etc. that goes along with the job application. You should never have to pay to be considered for a job.
  3. Headhunters than want an up-front fee from you. Typically, the employer pays any headhunter fee charged by job placement companies. Before signing on for any job search assistance, research the company. If they ask for money up front, be particularly cautious and find out how you would get a refund if they prove unable to help you land a job.
  4. Identity thieves posing as potential employers or as headhunters. Identity thieves will prey on any vulnerability in order to get you to give your personal information. This includes preying on folks looking for work. Unsolicited emails might direct you to the website of a supposed employer, but which actually aims to install maliscious software onto you computer (to feret out personal information). Others may string you along and then ask for your social security number and bank account information. Be wary of any unsolicited emails. And while taking a new job does involve giving your social security number, and direct deposits require bank account information, never give them out via email or on a website. As the job search hopefully leads to a real employer, be extremely careful to know who is asking for such information.

Elizabeth Warren, Harvard law professor and chairwomen of the Congressional Oversight Panel, has been credited with the idea for creating a Consumer Financial Protection Agency (CFPA). She recently offered a helpful Q&A about why we need a new agency to protect consumers from dangerous financial products.

Last year, the Senate tapped Elizabeth Warren to head the panel overseeing the Emergency Economic Stabilization Act (aka the financial system bailout). She has also been a driving force in the call for a federal agency to protect consumers from dangerous financial products (much like they are protected from dangerous physical products by the Consumer Products Safety Commission).

Warren began calling for such a new agency in 2007, with her article "Unsafe at Any Rate." Now, with portions of the financial industry (and their lobbyists) mounting increased opposition to any such new protections, Professor Warren sat for a very helpful Q&A discussing why additional protections are needed and what they might look like. She summed up why consumers need protection in 5 words: The credit market is broken.

Warren breaks down the need for more protection into three main points:

  1. Consumers can't compare different financial products (credit cards, loans, etc.) because the terms have become utterly convoluted. If a 30 page credit card agreement poses problems for a Harvard contract law professor, the rest of us stand little chance of actually comprehending all of its terms and how they compare to other cards.
  2. If consumers can't compare products, there can't be any real innovation in financial products. Opponents of financial regulation often trot out the argument that new rules will stifle "innovation." If "innovation" means something beyond new ways to line big bank and credit card company pockets, consumers have to understand the differences between the various products on the market. Right now they can't.
  3. Too much risk is getting into the system. As the financial collapse has shown, risky consumer financial products and mortgages cause rippling effects. At the end of the day, everyone is affected.

As Professor Warren explains, big banks and their lobbyists have a war chest to fight the creation of a CFPA. From her point of view, this is similar to their attempt to fight the creation of regulations we've come to know and trust, like FDIC insurance to name just one.

We'll see if the same can later be said of a CFPA.

New Children's Product Rules to Take Effect

Today, new rules aimed at improving the safety of children's products  will take effect.

The rules are part of the Consumer Product Safety Improvement Act. The Consumer Product Safety Commission (CPSC) insists that the rules will be vigorously enforced and will allow better tracking of lead in recalled products.

Specifically the new rules do the following:

  • Limit lead content in kids' products. Currently the limit is 600 parts per million (ppm). As of August 14, that drops to 300 ppm. It will now be illegal to import, manufacture or sell any goods accessible to children (except electronics)containing over 300 ppm lead.
  • Limit lead in paint even further. In paint and other similar surface coatings, the lead limit goes from 600 ppm to 90 ppm. This applies to children's goods as well as certain furniture goods as well.
  • Increase penalties greatly. Civil penalties will increase from a maximum $8,000 per violation to maximum $100,000 per violation. A relates series of related violations currently draws a maximum fine of $1.825 million. That goes up to $15 million on August 14.
  • Require new tracking labels. Goods for children 12 and younger, and the goods' packaging (to the extent possible) will need to have tracking labels that specify the manufacturer or private labeler, location, the date of manufacture, and more detailed information on the manufacturing process such as a batch or run number.
  • Require warnings of choking hazards in catalog ads. Advertisement for toys and games intended for children 3 to 6 must include a warning of any choking hazard. A grace period for doing this in catalogs has now expired, and it is required of all advertisements.

Ad Council Wants Disclosure of Paid Reviews

In another astroturfing incident, a nutritional supplement company was found to have paid for positive reviews to be posted on a "third party" website it operated. The National Advertising Review Council stated that marketers should disclose when reviews have been purchased.

For a nice rundown to the Urban Nutrition case, see the write-up in the Daily Online Examiner. Basically, the company paid reviewers to post positive reviews of its Serenity "non-prescription mood enhancement" and MiracleBurn dietary supplement. Plus the reviews were on sites like, which the company supposedly operated. After a competitor complained to the Electronic Retailing Self-Regulation Program (part of National Advertising Review Council), Urban Nutrition agreed to make more disclosures.

Last month we discussed astroturfing such as this -- where marketers use social media to create a false sense of popularity and grass roots support. With social media channels polluted with this stuff, what exactly are the ways to fight it?

In cases like Urban Nutrition, and the astroturfing facelift company Lifestyle Lift, their shady practices were challenged by competitors.

Lifestyle Lift came under the crosshairs of the state of New York after its competitor complained. State regulators, as well as the Federal Trade Commission (FTC) can go after egregious cases once they come to light.

Urban Nutrition came before the National Advertising Review Council (NARC), specifically the Electronic Retailing Self-Regulation Program (ERSP). As the name implies, this program, like all within NARC, operates to encourage marketers to regulate themselves. The types of claims NARC reviews include claims about truth in advertising -- specifically, the truth of claim's regarding a product's core effectiveness, and the truth of performance claims. They do not resolve claims about morality or politics in advertising.

For competitors, filing a complaint about an ad through NARC can be much cheaper than litigating it in court. The dispute is instead resolved through alternative dispute resolution, with a relatively quick decision. Typically the outcome is about whether or not a marketer will be asked to pull the ad.

One might question the teeth behind such a self-regulatory framework. However, ERSP states that in cases where a marketer refuses to pull an ad found to be noncompliant, it will refer the case the FTC. And the FTC has stated that it will give such cases expedited treatment due to the work already done through the ERSP case.

It seems like a mechanism effective for adjudicating claims between competitors, but what about consumers? Well, consumers can also file ERSP claims, as well as claims in NARC's other programs. The more pertinnent question is whether consumers are in a position to know when astroturfing is going on.

This may be why the FTC is considering updates to it's guidelines for reviews and testimonials.

Wii Controller Chargers Recalled for Fire Hazard

220,000 Wii controller charging stations have been recalled. The four dock rechargers were sold under the Psyclone and React brands.

Everybody who plays the Wii hopes to get the hot hand every now and again -- whether it's in bowling, tennis, golf, or any other game played with the wireless remote control. However, some players have suffered a more literal hot hand. As in burned by the battery pack in the Wii controller.

The problem with the Psyclone and React branded charging stations is one that has plagued many a battery powered device: too much heat. Their risk of overheating leads to a risk of fire and burns for those who grab what they thought to be a freshly charged controller.

Both brands are distributed by Griffin International Cos., Inc., of Minneapolis, Minn.

The Psyclone branded chargers were sold at Target and Toys R Us stores nationwide and on The React branded chargers were sold at Best Buy stores throughout the country.

The problematic chargers were sold between January of 2008 and January of 2009.

Consumers should stop using these chargers immediately and contact Griffin International about getting a replacement.

For Griffin's contact information, see the Consumer Product Safety Commission's recall notice.

Top 10 Recalled Children's Products

As part of its Resale Roundup campaign, the Consumer Products Safety Commission (CPSC) has released a list of the top 10 recalled children's products.

The Resale Roundup campaign is an effort to get resale shops to avoid selling recalled goods. As the CPSC points out, reselling recalled goods not only violates the law, but also puts consumers in danger.

In addition to monitoring online retailers and auction sites for recalled goods, the CPSC has partnered with the Salvation Army and the National Association of Resale & Thrift Shops to get the word out to resale and thrift shops about recalled products.

And the CPSC's top 10 recalled children's products are...

  • Playskool Travel-Lite Play Yards;
  • Evenflo Happy Camper Play Yards;
  • Baby Trend Home and Roam and Baby Express Portable Cribs and Play Yards;
  • Magnetix Magnetic Building Sets;
  • Easy Bake Ovens;
  • Polly Pocket Dolls with Magnets;
  • Simplicity Drop Side Cribs;
  • Simplicity Bassinets (also includes bassinets with Graco or Winnie the Pooh motif);
  • Hill Sportswear hooded drawstring sweatshirts; and
  • Evenflo Envision High Chairs.

For specific model numbers and picture of these kids' goods, see the full CPSC top 10 recalled children's products page.

Cash for Clunkers Ads from Some Dealers Deceptive

Some auto dealers are looking to cash in on the Cash for Clunkers program by luring in customers whose clunkers don't actually qualify. Before you step foot in a showroom, make sure the clunker you'd like to unload meets all the program's criteria.

New York's Attorney General sent cease and desist letters to about 40 auto dealers across New York state for putting out advertisements which deceptively misportrayed the rebates available through the Car Allowance Rebate System (CARS, aka Cash for Clunkers).

These ads deceived consumers by giving the impression that just about any old trade-in would qualify. Such ads can run a spectrum -- from over-aggressive promotion of the government program without indicating its limitations, to dealers running their own "Cash for Clunkers" incentives that have nothing to do with the actual government program.

Before speaking with someone who'd really like to put you into a nice new ride, keep in mind these basic criteria for qualifying for the CARS program.

  • The car to be purchased or leased must be a new car.
  • The old car must be from 1984 or later.
  • The old car must get 18 or fewer miles per gallon (combined hwy and city).
  • The old car must be drivable.
  • The old car must have been insured and registered to the new car buyer for an entire year prior to trade-in.

Like always, knowing your options and game plan before speaking to a salesman can help you ride out with a better deal.

Over 400 Tons of Beef Recalled in Fear of Salmonella

Beef Packers, Inc., of Fresno, California has recalled over 800,000 pounds of ground beef products that may be linked to an outbreak of drug resistant salmonella. The beef was repackaged and sold under different brand names at Sam's Club, Safeway and Vons in at least 9 states.

The ground beef in question was produced between June 5 and June 23, 2009. It was delivered to distribution centers in California, Arizona, Colorado and Utah. The ground beef products were repackaged and sold under different brand names at different stores. Here is a list (as of today) of the retailers identified by the USDA to be part of the beef product recall. It includes the nationwide chains Safeway, Sam's Club and Vons.

Through its website, Safeway specifies that customers should destroy any Safeway branded ground beef products with sell-by dates between June 6 and July 14 that were purchased in Arizona, California, Colorado, Hawaii, Nebraska, Nevada, New Mexico, South Dakota and Wyoming. This meat should no longer be on store shelves, but may still be in many people's freezers.

Vons is part of Safeway, and the same Safeway recall information applies to its stores.

Walmart, owner of Sam's Club, through its website, gives a copy of the USDA recall notice (which is almost useless to the end consumer), but provides no information as to which Sam's locations, or even which states are involved.

A look at the USDA's list shows that Sam's Clubs in at least Alaska, Arizona, California, Colorado, Idaho, Nevada, New Mexico, Utah and Wyoming sold the tainted meat.

Just a couple of weeks ago, King Sooper's grocery stores recalled about 500,000 pounds of ground beef due to connection with another drug resistant strain of salmonella.

Behavioral Advertising: Should Users Need to Opt-In?

New blood is at the helm of consumer protection at the Federal Trade Commission (FTC), and the agency's approach to behavioral advertising may change. Existing rules which require disclosure of the practice may not adequately protect privacy. What's unclear, however, is what new rules should replace them.

Behavioral advertising is advertising that uses data regarding people's past behaviors in order to bring them targeted advertisements. Your grocery store card is one example. That beer and bag of chips you bought last night might well determine what coupons show up on the back of your next receipt.

For the most part, however, we are talking about online behavioral advertising -- where information about a web user (web surfing history, data on their computer, etc.) is used to determine which ads the user sees. Websites can also track information about a user and make money by selling the data to third party web advertisers.

The practice is widespread, with proponents arguing that it lowers the cost of web content by allowing advertisers to pay a premium for ads that more efficiently reach their desired customers. They also argue that consumers are better served by getting ads relevant to their desires.

Privacy advocates, on the other hand, argue that web users aren't always aware of what data about them is being collected, how it is used, or who will be able to use it.

Currently, federal regulations require that websites tracking user data fully disclose that they are doing so. However, this disclosure often is hidden within the fine print of a website's usage policy or user agreement.

Recently, as described in a column by Professor Anita Ramasastry, the FTC came down hard on Sears for failing to properly disclose the extent of their user monitoring (which was pretty extreme).

The FTC ordered Sears to beef up disclosure of: 1) all data being collected; 2) how it might be used; and 3) whether it may be used by third parties.

To promote self-regulation, the online advertising industry has beefed up the disclosure called for by its own guidelines.

Some, however, wonder whether disclosure is enough. One other option being thrown around is an "opt-in" requirement.

Currently, the default is that a user's data will be tracked unless they opt-out (for example by not using the website, or by not allowing tracking if the website has such an option). Making users opt-in to the data collection up front might prevent uninformed users from having their data tracked. Users who want to benefit from targeted ads could simply opt-in.

As discussed in a recent interview with the New York Times, the new head of consumer protection at the FTC, David Vladeck sees a possible role for behavioral advertising opt-in regulation, even if it is not required in all cases.

We'll see if anything comes of it.

Avoiding Online Fraud: Six Tips from an Expert

In an effort to combat online fraud in the sale of consumer goods, and a fraud prevention expert have teamed to offer advice on how to avoid getting scammed.

The author of many fraud protection books, Sid Kirchheimer, offered the following tips for avoiding online fraud:

  1. Research the average price for whatever you are shopping for online. Beware of scam artists who offer much lower prices as away to entice shoppers and perhaps lower their guard.
  2. Don't let anyone rush you. Many online fraudsters will insist that the sale must happen immediately. This is often a way to force the shopper to decide without time to think about risks.
  3. Be on the lookout for "Scammer Grammar." Red flags should go up if you see misspellings, words used incorrectly or language mistakes not typically made by those fluent in English. Also beware of any seller that refuses to speak with you on the phone.
  4. Don't shop online from a public computer or over a Wi-Fi connection. This could lead to the loss of valuable personal information, including credit card numbers.
  5. If you get an email asking you to "update your account," don't take the bait. This is a common way to get users to give personal and account information to scam artists.
  6. Spice up your passwords. No words form the dictionary (or spelled backwards). Use letters, numbers and symbols to make them more protective.

Drug Ads, Abilify & FDA Approval

The onslaught of advertisements for Abilify as a treatment for depression exemplify the lucrative bounty of winning FDA approval to use a drug in a different manner than its originally intended purpose. The ability to promote Abilify for use with depression has brought its maker (Bristol-Myers Squibb) huge new revenues. FDA approval could also have paved the way for ads that border on deceptive, and many patients unnecessarily taking a drug that can have intense side effects.

An Abilify ad was recently featured on Consumer Reports' AdWatch. In the words of Consumer Reports, "[w]e chose Abilify for this seventh edition of our AdWatch series because, frankly, the ad scares us."

What is Consumer Reports' beef with the ad? Basically, that it makes Abilify sound like an anti-depressant, which it is not. It is an anti-psychotic which in 2007 the FDA approved for corollary use with patients on an anti-depressant. Consumer Reports also takes issue with the impression left by the ad -- that patients should try it if an anti-depressant alone hasn't worked.

According to Consumer Reports, the first anti-depressant tried often does not work on a patient. However, adjusting type, dosage and other treatment options may prove much less risky than prescribing Abilify, which comes with risk of more dangerous side effects.

Abilify serves as the perfect counter example to the recent Zyprexa story. There, Zyprexa's maker (Eli Lilly) paid $1.42 billion to settle civil claims and a federal criminal probe over it's marketing of the drug for unapproved uses. Doctors can at times prescribe a drug for a use which the FDA has not officially approved. (This is called "off-label use.") As explained in an earlier post, however, drug companies cannot market a drug for uses unapproved by the FDA.

Zyprexa did not receive FDA approval for uses associated with the elderly or helping them sleep, but Eli Lilly marketed such uses to the hilt. Result: big money loss for Lilly.

Abilify did receive FDA approval for use as corollary to fight depression. (Incidentally the customer base for depression uses dwarfs the customer base for Abilify's originally intended patients -- those suffering from schizophrenia or bi-polar disorder).

And market Abilify for its newly approved use it did. According to Consumer Reports, Bristol-Myers spent around $100 million marketing Abilify in 2008. Sales of the drug (which costs much more than most anti-depressants) reportedly increased approximately 33%.