TRANSCRIPT Oh No, Ross and Carrie!: Ross and Carrie Meet Nick Little: Homeopathic Lawsuit Edition

Ross and Carrie sit down with Nick Little, Vice President and General Counsel for the Center for Inquiry, to talk about the organization’s legal campaigns, including their lawsuit against retail giants CVS and Walmart for selling homeopathy as medicine.

Podcast: Oh No, Ross and Carrie!

Episode number: 230

Transcript

music

“Oh No, Ross and Carrie! Theme Song” by Brian Keith Dalton. A jaunty, upbeat instrumental.

ross blocher

Hello, and welcome to Oh  No, Ross and Carrie! The show where we don’t just report on fridge science, spirituality, and claims of the paranormal, but take part ourselves.

carrie poppy

Yup, when they make the claims we show up so you don’t have to. I’m Nick Little.

ross

I’m Carrie Poppy.

nick little

Um, I’m—I’m Nick Little as well. [Ross and Carrie laugh.]

ross

Hey, we got two Nick Littles! I’m Spartacus!

carrie

This is how you know a lawyer’s in the room. Thinks on his feet.

nick

I guess. Yes.

carrie

[Laughing] No, we have a special guest today.

ross

Nick Little. Welcome to Oh No, Ross and Carrie!

nick

Well, thank you. Thank you. Good to be here.

carrie

A pleasure. You met Nick in Las Vegas.

ross

Yes, at CSICon, and then again here in Los Angeles shortly thereafter. And Nick was giving an excellent talk about a fight against homeopathy, but Nick has a very special position as the sole lawyer—

nick

I am CFI’s legal department, yes.

ross

—at CFI.

nick

This is it.

carrie

The Center for Inquiry.

ross

Yeah, we talk about CFI every now and then on the show. We also talk about the CFIIG, the investigations group wing of CFI that I’ve been involved with for many, many years.

carrie

And our first episode was recorded at the old CFI office.

ross

And guess what? We are now at the new CFI office.

carrie

[Emphatically] Woah!

ross

Which is still in LA, but now on Temple Street. Yeah. Come on by and visit. There’s gonna be lectures, all kinds of stuff. And that’s—at least at the old one—that’s where Carrie and I first met.

carrie

That’s right. Going to a book club.

ross

I’m now co-lead of that book club. We still meet every month, if anybody is in LA and wants to come talk about books.

carrie

Always trying to get people to your book club.

ross

I am, absolutely. The more the merrier.

carrie

Nick, how long have you been working with CFI?

nick

Just over six years. I think it was six years in September that I started.

ross

And how did they lure you in?

nick

I’d like to give this sort of great story about how I was led by the heart and emotion to the nonprofit world, but after law school I worked for a big law firm. I represented fortune 500 companies and received obscene paychecks— [Ross and Carrie laugh.] —for so doing, and probably would have ended up doing that for the rest of my life, ‘cause the paychecks are really compelling.

ross

I’m sensing regret in this. [Carrie laughs.]

nick

And—and my firm went bankrupt.

ross

Really?

carrie

Oh my god. Okay.

nick

Which kind of happens to law firms occasionally. It just imploded, and through a combination of very weird circumstances. I was offered another couple of jobs and failed the conflicts check, because of previous work I’d done. And then I was offered a job and it turned out that it was a law firm that my brother works for in the London office, and have anti-nepotism laws. [Carrie responds affirmatively.]

ross

Ah. But he’s not your nephew.

nick

Indeed. You know, I thought, “I need a job.” And I saw advertised the CFI, which I’ll confess I had never heard of. I was looking for something to do first amendment law, which was kind of a passion of mine. And so I applied without thinking a lot about it and then— [Ross and Carrie laugh.] —so the more I looked at the organization, I was like, “This is great, and if I don’t get out of the big law world now I am never gonna do it.” And so I took the plunge, and I went off and worked for CFI, and I always say that I much prefer my job now to my old job, except for two days a month, when the paychecks come in. [Ross and Carrie laugh and affirm.] When the first one came in, I actually took it back to Ron Linsday at the time, and I was like, “I think there’s a misprint here.” He was like, “No, no there isn’t.”

carrie

[Laughing] Oh, no!

ross

There’s a zero missing somewhere. A comma misplaced. We should probably describe CFI a little more. The Center for Inquiry was founded in 1976, thereabouts— [Nick responds affirmatively.] —by Paul Kurtz and other leading lights of the critical thinking, skeptical, humanist, atheist movement. You had Isaac Asimov, Carl Sagan, James Randi, a lot of those types involved early on. And it’s kind of exited for many years in two parts. You have your council for secular humanism, which is all about sort of that humanist side, more the philosophy side. And then what was originally the Committee for Skeptical Inquiry of Claims of the Paranormal.

carrie

Oh yeah, originally yeah.

ross

Or CSICOP.

nick

I just know it as CSICOP, yes. I’m not sure I had ever known what the full abbreviation stood for.

ross

I may have messed up the CSI part of it, because now it’s just CSI, not to be confused with CSI: Miami, or the other TV shows. But it’s the Committee for Skeptical Inquiry. I think the original CSICOP had a different acronym, but I’m in the ballpark.

carrie

It did, yeah. I’m trying to think of it too. But yeah yeah yeah, so you came in six years ago. Now, we really brushed past what sounded like a very juicy story. What the hell happened with your firm, and what were your conflicts of interest? This is the real juicy stuff now.

nick

I wish. I mean, I wish. The firm went bankrupt. They even had an LA office, and they fell into the problem of expanding too quickly, and had a Salt Lake City office I think which never made any money.

carrie

Okay. Those Mormons.

nick

Damn Mormons.

carrie

They don’t do anything wrong. [Ross laughs.]

nick

Yeah. And what happened with me on conflicts, the totally bizarre one was I had done seven hours work on a huge class action lawsuit that was representing—I can’t even remember if we were representing or defending against the Dairy Farmers of America. It was like, a milk price fixing lawsuit. And I literally did seven billable hours on this. It was just something I filled in when I had some slow time. And we would have to have got a signature to waive the conflict from every single member of the plaintiff’s class, and that was around 45 thousand dairy farmers in America. [Carrie laughs and responds affirmatively.] So probably wasn’t gonna happen, so Nick could go off and work for another soulless big law firm.

carrie

Got it. That’s… a milkier story than I thought, but not that juicy. [Nick responds affirmatively.] Yeah. Okay, so then you came here.

ross

Also soulless, but in a good way.

nick

Yes. Yes, good soulless. [Ross and Carrie laugh.]

ross

And you were drawn to the first amendment side of things. So why would CFI—why would they be interested in first amendment law?

nick

Well, they advertised the position—and this was—I was a little concerned about it at first, because they described themselves as a secular organization, and the first time I read it, I thought it said “sectarian” organization. [Ross and Carrie respond affirmatively and laugh.] So I was convinced I was applying to sort of a Catholic human rights organization or something.

carrie

[Laughs] And you still applied!

nick

Turns out I wasn’t. So yeah, the ad was talking all about working international human rights, working church-state separation law. And if you look at law school, everyone takes the criminal law classes, and everyone takes the constitutional law classes, because they’re fun. And it’s great. It provides you conversation to talk about in bars and when you’re watching Law and Order and things. And then you end up working proofreading 400 page contracts for an oil company. Nobody practices what they want to, and everybody goes to law school saying, you know, “I’m gonna be a public defender,” or “I’m gonna be a prosecutor,” or “I’m gonna work for a nonprofit” and no one ever does.

ross

You end up doing the drywalling of the lawyer industry.

nick

Yes. And you get rewarded very, very nicely for it, but every lawyer I know, they live for their pro bono cases. Um, and I had some great ones, and it gives you a chance to—you know, you feel—

ross

I’m making the world a better place.

nick

Exactly. One person at a time. You get the cool stories out of it. And I suddenly thought, “Maybe I will get to do this like, all the time, rather than the 5% of the time that my law firm would allow me to work and not get paid.”

carrie

And you did.

nick

I did! And here I am.

carrie

Okay, so what is the average day like for you?

nick

I am somewhat unique, and I hate—sorry, I apologize, because unique should never have—

ross

Qualifiers?

nick

Qualifiers like that. I’m unique in the secular litigation world in two different ways. The first way is an internal way, like I am the only one of the secular lawyers who does in-house work as well. So I’m responsible for as much of CFI’s internal legal operations as I can do, because every dollar we don’t spend on an outside lawyer is a dollar we can then spend on—

carrie

Your programming.

nick

—the fun stuff. Yeah, the programming. So that is the part of my job that I am less, I would say enamored with, but it’s stuff that needs to be done. And it can be fun. This building we’re in, I did a lot of work of the purchase of this building.

carrie

Sure. Employment contracts.

nick

Employment contracts. Rewriting employee handbook. Organizing sexual harassment training seminars. All this kind of thing, and it’s just like, it’s still that needs to be done. Does have a fun side to it, because I am the libel lawyer for both of CFI’s main publications. Which is CSH’s Free Inquiry, which tends to do the church-state stuff, and Skeptical Inquirer, which is CSI’s magazine, which does the flat Earth, the pseudo-science, the bigfoot kind of stuff.

ross

Yes. That’s why Carrie has written for that particular magazine.

nick

Exactly, and because we’re an organization that takes on some reasonably powerful groups, on the one hand, and also takes on some people with rather crazy viewpoints who are very dedicated to those beliefs—such as the flat Earthers, for example—we run the potential of getting into a lot of libel issues. So I work on that. That’s the inside work. The outside work—again, the second way in which I’m unique in the secular litigation world—is I don’t just do the church-state cases. I do the church-state first amendment cases, but because we have CSI as well, I have started to look at developing a new type of litigation, that I call suing for science. [Ross and Carrie respond affirmatively.] Because that’s a good label. Read about me in Skeptical Inquirer, where I wrote an article called Suing for Science.

ross

I’m intrigued.

nick

And yeah, trying to use laws around the country, in particular the states have consumer protection laws, and using those to challenge the people who are making billions upon billions of dollars out of selling pseudoscientific nonsense to people. Whether it’s psychics and fortune tellers, or what I’m doing most of my work on at the moment is the alt med people.

ross

Interesting. I’m curious to know kind of what hooks you have in the law to say, “What you’re doing is illegal,” because I know often times it seems like society sort of treats people who fall for some of these products and services as, they’re the problem. “Well, you weren’t smart enough to realize you were being taken advantage of.”

carrie

“Anyone can buy anything.”

ross

Yeah, it’s a free marketplace and, you know, as long as you put the little slogan somewhere that says, “Oh, this is not approved by the FDA,” you can get away with a lot. So what is your purchase there?

nick

And that’s actually been the real problem. The first conversation I ever had at CFI with Ron Linsday, who as then the president CEO, was, “How the hell can we sue Target for selling homeopathy?” And we went back and forth, and it was something we talked about pretty much every week, whether it was for 50 minutes or two hours, or thereabout. How can we do this? Every idea we came up with was just, “No, that’s not gonna work. It’s not gonna work for one reason or another reason.” One of the biggest problems you’d get is the notion of standing, which I don’t know if this is something either of you two know particularly about.

carrie

Yeah, like standing, in my layman’s understanding, is you have a stake in this case. You know, you’re affected by the outcome of it.

nick

Yeah, it’s skin in the game. Um—

ross

And it usually has to be expressed in terms of locality, like—

nick 

Locality, and generally speaking, it needs to be financial. [Ross and Carrie respond affirmatively.] The court system does not want people just suing because they don’t like stuff, so they say you have to be have been harmed by something. This is a major problem for us on homeopathy. Firstly because—

ross

First do no harm.

nick

—homeopathy is nothing. [Ross and Carrie laugh and affirm.] You know, you’re not getting damaging products on the whole, because you’re getting sugar pills, or vials of water.

ross

For those of—the listeners who haven’t heard our previous coverage of homeopathy where we’ve overdosed on homeopathy, it’s not just a synonym for natural medicine. It’s actually—there’s a philosophy behind it that you take an active substance that would harm you and you dilute it to an absurd level, to the point where there’s statistically zero chance of having an original molecule of the substance in the water that creates the sugar pill or the tincture, whatever it is you’re drinking. So essentially you’re taking water, but with the idea that that water has a memory, which it does not.

nick

Right, um, so there are people who are actually genuinely hurt by homeopathy, because there no controls of the industry. No effective controls. So you get tainted products, and there were children harmed by teething tablets from—I believe it was Hyland’s. Because—and this seems like the most logical thing in the world, to make a teething tablet out of—the ingredient, the allegedly active ingredient before it was diluted down is belladonna, better known as deadly nightshade. [Ross and Carrie respond affirmatively and laugh.] Yeah, bit of a hint if there’s deadly in the name of a product. Probably not the best—

ross

For teething children.

nick

—for teething infants.

carrie

Killer whales are nice though. [Everyone pauses, humming affirmatively.] … Let’s—let’s all pause and consider it. [Everyone laughs uproariously.] Okay, great, go on.

nick

Um, so there were a lot of children made sick by the wrong level of belladonna being put in this. But, again, I’m a one man legal shop. We’re a small nonprofit. Those people are going to go to plaintiffs lawyers who are in the position to, you know, file a lawsuit and get them a settlement check. They’re not going to come to CFI. What about our members? ‘Cause there’s another harm of homeopathy. There’s two specific other harms I mentioned in the lawsuit. The first is you’re getting ripped off, you know? You pay $28.99 for a pack of oscillococcinum. That’s 28 dollars and 99 cents you’ve lost. Also, if you bought oscillococcinum to treat the flu—

ross

Opportunity cost.

nick

—you have an opportunity cost, because you are suffering from the flu longer than you would. And, okay, that sucks. It’s not a huge loss, but—

carrie

I mean, a lot of people die from flu every year.

nick

Yep. Then you start looking at children on this, and that’s where I have particular problems. You have children with ear infections who are taking homeo—not taking, because that implies they have agency in this. Whose parents are giving them homeopathic remedies. And I hate even using—

ross

Using those words together, yeah.

nick

Homeopathic products is a better way of looking at it. And instead of antibiotics, they suffer long term hearing loss. [Ross responds negatively.] Or asthma. Children’s asthma medicine. They sell homeopathic asthma medicine.

ross

Like, in a drug trial, you want to have placebos in the mix so you don’t know whether you’ve got the active substance or not. But essentially what homeopathy being on the shelves alongside the other products, similarly colored, similarly labeled, naming the thing that you think that you’re treating, you’re essentially—you’re giving yourself a 50/50 chance of grabbing a placebo off the shelf.

nick

And that’s where we came into what our hook was. Because even that, even with those harms, we still didn’t have the people who were harmed. Our members don’t tend to buy homeopathy, because they know it’s crap. So we didn’t have those people in it. So, I then found a—the DC consumer protection statute, which is a very good consumer protection statute. And there was a case. Some cases have great names that just stick in your mind, and the only reason I read this case was because of the name. It was called Bimbo Bakeries, which was a—

ross

Oh yeah! I’ve seen their trucks driving around and go, [Laughing] “That truck says bimbo!”

nick

Absolutely. And it can, um—

carrie

Crash. [Laughs.]

nick

A small DC-based nonprofit sued under DC’s consumer protection laws about the amount of whole grain in Bimbo Bakery’s bread. [Ross and Carrie respond affirmatively.] I don’t know what happened in the case, but I do know they were allowed to continue and were considered to have standing because they were representing the DC population on top of it. And so, like, a lightbulb comically went on above my head.

carrie

Why do people care about how much grain is in this thing? Is it a gluten-free thing?

nick

Because it was—simply because they were claiming this was a health product with a large quantity of whole grain. It was deceptive marketing. [Carrie responds affirmatively.]

ross

This reminds me of—I don’t remember which hamburger chain it was but, you know, it was like a quarter pounder or something, and someone weighed it and after it had been cooked it was not that heavy. So they sued over that. This is my very anecdotal—

nick

Right, I ended up in a plaintiff’s class action when I owned a Hyundai, because my Hyundai was advertised at 140 horsepower and they tested it and it was 139.6 horsepower. [Ross and Carrie laugh.]

ross

Oh, people.

nick

So in the settlement I got a voucher that lasted for six—

carrie

Horses get sick.

nick

—months for 50 dollars off my next purchase of a Hyundai.

carrie

Oh, god.

nick

Which was not the most useful settlement ever.

ross

I like your logic, Carrie. You know, sometimes your horse needs a day off.

carrie

Your horse is tired.

nick

Absolutely. So, yeah, we found this case and it was like, “So we can sue on behalf of the DC population.” It’s known as doing a private attorney general lawsuit. And we looked at it and we thought, “Yeah, how are we—what are they doing illegal? How are they misrepresenting it?” Because there’s been all of these lawsuits about suing the manufacturers of homeopathy, about what they write on the package. And unfortunately the FDA is not doing its job properly. The FDC is not doing its job properly. They’re letting them get away with this. And then suddenly I was walking down in CVS—I think I was buying a pack of cigarettes, which tells you how long ago it was, ‘cause CVS no longer sells them.

carrie

Uh, CVS is a drug store here in the states.

nick

Yes. Ah, is CVS not a Los Angeles...

carrie

Oh, no, I just—I was saying here in the states for international listeners. Nick, sometimes people aren’t from America. [Ross and Carrie laugh.]

ross

Right next to your Bimbo Bakery there’s usually a CVS.

nick

So you walk in. If you go into CVS to buy a medicine of some type, there will be a big sign hanging from the roof which says pharmacy. So you go over to the pharmacy section and there’s aisles. And the aisles are labeled. You’ll have a pain relief aisle, a first aid aisle, a cold and flu aisle. So you go down cold and flu, and there will be Tylenol cold and sinus. There will be Motrin rapid relief. All that. And then you see oscillococcinum, which says on the packaging, “for flu symptoms,” because they can’t say it cures flu. But my argument is, and I don’t think this is a particularly radical argument to make, is that if you put something underneath a sign that says cold and flu, you are representing to people that it treats cold and flu.

ross

That sounds very reasonable.

nick

It doesn’t. And because it doesn’t treat cold and flu—

carrie

Oh. Oh, I thought you were saying it doesn’t seem reasonable.

nick

No. Oh, well to CVS apparently— [Ross and Carrie laugh.] —it doesn’t seem reasonable. But yeah, it simply does not treat cold and flu. It’s a sham.

ross

Now, that’s interesting. Do they—within the CVS, do they separate homeopathic products amongst those different aisles, or do they have kind of one section that’s all the homeopathy together?

nick

No. It’s in different aisles, and it’s not even broken down within the aisles. So it’ll be—you look at children’s cough medication, there will be the bottles. You’ll go real medicine, homeopathy, real medicine, homeopathy. So it’s giving false information to the consumers. So we realized when we went into this, we can’t stop them from selling it. You know, they’re legally allowed to sell it. It’s unfortunate. I wish they didn’t sell it, but. The argument I’ve been making to try and convince these companies is that this is in your own interest. This is—because what we want is that anybody who wants homeopathy can go in there and find homeopathy, and anyone who wants real medicine that will actually cure or alleviate their disease doesn’t buy homeopathy by mistake. So what we’ve asked them to do is to—it’s two things. To put it in a separate section, labeled. I wanted “complete rip off, will do you know good,” but apparently that doesn’t work with their marketing strategy.

carrie

Huh! That’s weird!

ross

Seems neutral to me.

nick

I thought that. Um, so to label it homeopathy, and then also on the shelves to put—the FTC the issued a statement. The Federal Trade Commission, which regulates how drugs are marketed. They have a statement which they have said this is sufficient that advertising for homeopathic products isn’t deceptive. And it essentially says that this product is based on German theories from the 18th century that have no scientific evidence to support them, and the vast majority of modern physicians do not believe that this has any effect. We want that displayed on the shelves as well. Unfortunately, and it’s a horrible, horrible reflection on the world we’re in, I actually think they would sell more of the product if they did that, because—

ross

Oh, ‘cause this is not from the medical establishment.

nick

—the level of the mistrust of big pharma. But in the end we have to just accept that if we’re gonna do anything, the person we’re trying to protect is like, the—it’s the mother of the end of a day’s work whose kid has pink eye and is screaming and she just wants to go home, and she parks outside the CVS and runs into the store and is just—you know what it’s like. You’re not, you know, you’re not a doctor, and you see there’s these like, 50 products to treat the same thing. So you grab.

carrie

And one says, you know, “No side effects, all natural.” Yup.

nick

And that’s exactly it. They go beyond just the, “Hey, let’s be confused over this.” They put words on there that are just designed to appeal to parents, to certain types of consumers.

carrie

Yeah, their anxieties about being a parent, yeah.

ross

Well, Carrie, uh, just after speaking with Nick—I know we’ll get back to this—but I just have to ask you, what would you call one of the worst discoveries ever in the history of medicine?

carrie

Samuel Hahnemann’s homeopathy?

ross

Yeah, that was a bad discovery.

carrie

That was not good. What do you think is the greatest discovery?

ross

Well, I would have to say the podcast on Maximum Fun called The Greatest Discovery.

carrie

Oh! Agree.

promo

[Computer beeping.] Music: Light, inspirational music plays. Jean-Luc Picard: Nearly two decades ago, Commander Data sacrificed his life for me… [The clip continues in the background, inaudible under the dialogue.] Ben Harrison: The Greatest Discovery is also about Star Trek: Picard. Adam Prancia: Jesse Thorn won’t less us stay on the network unless we do all the Star Trek series. [Ben chuckles.] Adam: And so, here we are, doing a show about maybe our favorite Star Trek character of all time. Ben: If you’re excited to watch the new Star Trek: Picard series and you’d like some veteran Star Trek podcasters to watch it along with, we’re your guys! Sorry you’re stuck with us. Speaker 1: The hell are you doing out here, Picard? Saving the galaxy? [The clip continues in the background.] Adam: So, subscribe to The Greatest Discovery. You can find it anywhere you find podcasts. Ben: Or at MaximumFun.org. Speaker 2: [Screaming, distant.] Jean-Luc Picaaard! [The beep of a communicator.]

carrie

Okay, so I am with you on your goal, but I’m following this argument and I think I see a plot hole. So, okay, so you’re saying they put it under cold and flu but they’re not really treating cold and flu. Now, if I go and get Tylenol cold and flu, I’m not treating the virus, I’m treating the symptoms I get as a result of the virus, right? So I’m still not treating cold and flu.

nick

But you are providing relief for the symptoms of cold and flu.

carrie

That’s true, but even with homeopathy, with the placebo effect, you are relieving pain to some degree, and a person’s suffering.

nick

Right. However, it would not be acceptable for them to place just placebos there and call it, you know, sort of like flu-eze or something. That wouldn’t be allowed, but that is actually what is allowed with homeopathy.

carrie

I don’t think I follow. Okay, if they put something—okay, put just a placebo pill that wasn’t called homeopathy, you’re saying.

nick

That wasn’t called homeopathy and called it flu-something, or cold calm, I believe, which actually is a homeopathic product, or teething-be-gone. And they put all this stuff on the label, including, you know, sort of, “This contains active ingredients,” and then put a Latin name after it, and then put—

carrie

1000x.

nick

—a loose level after it, and that active ingredient isn’t in there in the end. That would be deceiving customers on the—

carrie

I agree it’s deceiving them.

nick

And it would be illegal under any consumer protection laws. But homeopathy has these special carve-outs.

carrie

Oh, okay. So tell me about that. How does homeopathy get this special standing?

ross

Yeah, is this written into law?

nick

It’s written into federal law essentially, yeah. Homeopathic products do not have to be tested in the same way for safety and efficacy that real medicine has to be tested. Now there’s a problem all across the supplements industry, but homeopathy in particular. And I apologize that I have forgotten the person’s name and what state he was. There was a senator who was a homeopath and when the Food and Drug Act was put in, he put in this carve-out for homeopathy. So if you look at over the counter medications, if you want to bring a new aspirin to the market, you don’t have to go run it back to the beginning and test everything through that process, because aspirin has already been tested. However, you do have to report, you know, show that A) it is aspirin that’s in your product, and that you’re having the right standards of purity.

ross

Sourcing it safely.

nick

Absolutely. Homeopathy simply never—doesn’t even have to go through that initial testing for efficacy. It’s anything that is listed in the HPUS, which is the big bumper book of homeopathy.

carrie

The homeopathic bible, yeah.

nick

Yeah, homeopathic pharmacopoeia or something. Can be sold on that for that purpose, because the general idea is, from the government, that’s it’s like, “Well, it’s not gonna harm anybody.” You know, because there’s nothing in there. And they are absolutely right when they put on there, you know, “will not interact with any other drugs.” Of course it won’t. [Ross and Carrie laugh.] Because there’s nothing in there to interact.

ross

There’s no side effects ‘cause there’s no effects.

nick

Absolutely. So, homeopathy has a special little space carved out, and they’ve really exploited this.

carrie

Yeah. Boy, this one senator really fucked things up.

ross

Right. That just goes to show you how important legislation can be, and how harmful it can be if done wrong. Is there any way to go after that, to get that invalidated?

nick

We’ve tried. We’ve tried going after it. This is part of the big problem that we’re facing, and we faced when working out how to bring the suit is, ‘cause the FDA, the Food and Drug Administration, and the FTC, the Federal Trade Commission both are required to regulate the drug industry, and also the homeopathic industry. They don’t do it. They just—they don’t do it. But it is almost impossible to sue the government for not doing its job.

carrie

Yeah. Right, because everyone’s making these analyses of where do we spend our time and money, and of course the things that are actively killing people are going to be triaged first, and so other things passively hurting people—

nick

I was specifically told that by um, a person from the DC consumer protection department. Because initially, before I sued, I filed a complaint with the DC consumer protection bureau, and a guy spoke to me off the record, because he had retired in that time. I hope I’m not getting him in trouble here at all, but, uh—

carrie

So far we just know he’s a guy, so.

nick

Yes. Uh, and a wonderful guy. And he was saying, “Listen, I love your suit. I think it’s great. I think, you know, this is—what they’re doing is terrible.”

carrie

And what kind of suit were you wearing? [Ross and Carrie laugh.] I’ll stop. Go on. [Nick makes ‘ugh’ sound. Ross and Carrie laugh harder.] Really tortured him.

nick

So yeah, he was like, “I would love to take this on. I think they are irresponsible, I think something should be done about it. But I have people mailing fake cancer cures to old age pensioners in Northeast DC who are living in public housing.”

ross

You gotta shut that down.

nick

“—And I’ve got three people who work in the department. I just don’t have time.” So what I needed, and it’s another thing, another requirement for most lawsuits is you have to show that you tried to do it without suing. [Ross and Carrie respond affirmatively.] So I could show that I’d gone to the DC government and said, “Do something about this,” and they’d say, “No.”

ross

And yet they would like to, if they had adequate staffing.

nick

Right, which they of course can’t put on the record, and won’t put on the record. But I don’t need them to. I just need them to say that my complaint is not gonna be moved forward on.

ross

Through that avenue. Huh.

nick

Yeah, so I had to spend all this time surreptitiously wandering around CVS, taking photos with my cell phone, and actually got asked what I was doing in one. It’s like—I didn’t have a very good answer. I was like—

carrie

[Laughing] Selfies?

nick

I just hadn’t thought about it. ‘Cause I guess not many people take pictures of shelf displays in drug stores.

ross

Weird.

carrie

Yeah, I actually had to do that a lot when I was a nanny, because like, the overbearing mother would want to see every single thing I was buying. So I feel like it’s probably more common.

nick

That would’ve been a good—a good answer to it. I should have responded.

carrie

“I work for an overbearing mother.”

nick

So yeah, I sued CVS first in that, and then I decided that suing America’s biggest pharmacist, being a one-person legal shop wasn’t busy enough. So I sued the world’s biggest retailer.

carrie

Okay, wait.

crosstalk

Ross and Carri: [In unison] Walmart?

nick

Walmart! [Ross and Carrie cheer and high five each other.] For doing exactly the same thing. So I now have two suits running at the same time.

ross

Oh, wow. Okay, so legal department of one versus—do they have more than one lawyer at Walmart?

nick

They have more than—they actually have two law firms on this one case. [Ross laughs incredulously.] Dechert, which I think is like, the 8th largest firm in the United States, and then a firm whose name I’ve forgotten, which I think is the 4th largest firm in the world. There we are. And the lawyer, the main lawyer on it is actually an old colleague of mine from the law firm that went bankrupt. [Ross and Carrie respond emphatically.] So uh—

ross

Call you on the side like, “Hey.”

nick

Yeah, she called me up, and it was like, “I’m wondering, is this you?” And then when I answered the phone—

ross

Is this the same Nick Little?

nick

She was going, “I’m guessing this is the same Nick Little.”

ross

Did she try to talk you out of it on the side?

nick

Nope. But, there are good things in that, because that we know each other, it cuts through a lot of the B.S. and um—

ross

A lot of nonsense antagonism, probably.

nick

Yeah, if we need an extra week to file something, we’re not going to mess around with each other. In fact, tomorrow in the CVS case, I just had abject panic, because I was meant to be at the status conference, which is where you turn up and tell the judge that nothing is happened in DC, Friday morning. And of course I’m here in LA and it’s Wednesday night, so that was a little disturbing. So two weeks ago, I filed to move that date and the court just did nothing, but today they finally issued an order that pushes it into next year, so.

ross

Oh, you’ll get to sleep.

nick

I will get to sleep. I will not have to take the red eye back on Thursday. And in that case, where we are in that case is we had negotiations with CVS. They were actually, to their credit, they were very open to discussions. They made some offers. They didn’t go far enough.

ross

Yeah, what were the offers, like we’ll add signage or something?

nick

I, unfortunately, at this stage I can’t discuss what specifically was in the office, but it didn’t go all the way to what we wanted. So they filed what’s called a motion to dismiss, which is basically asking the judge to rule that under no set of facts can we possibly win. And so, they’re making arguments like, that we expected them to like—this should be done by the FDA and the FTC and you, as a state court, have no right to intervene with that. And we filed our response to that. And so that’s now with the judge, and it’s been with the judge for a long time now. It’s like three months or so, and you can never really read the tea leaves on this sort of thing, but my guess is that’s very good news for us.

ross

It wasn’t an instant dismissal.

nick

Yeah, if he wanted to get rid of the case, I think he might have done it quickly. And he hasn’t. So we have then, with the Walmart situation, we’ve agreed to delay everything until the judge rules on this. ‘Cause even though it’s in the CVS case, it’s going to have a very big impact on the Walmart case. And I was very clear with them. It’s like, we can settle this beforehand, but if we win the motion to dismiss against CVS, the price goes up. It’s like, you know, I’m in a much stronger position in negotiations.

ross

It’s a bit of gang theory going on here now.

nick

Absolutely. So, we’re currently involved in talks with Walmart. Again, they are being very receptive at least to the idea of talking. Um, so I would imagine sometime in the spring I will be going down to Arkansas, which is a depressing concept in and of itself.

ross

Hey, there’s the Ozark Mountain UFO conference down there, we highly recommend.

nick

I’ll see if I can get it to cross over.

ross

You’ll CFI, you think you can get it to cross over?

nick

[Sighing deeply] Oh, Jesus.

carrie

Thank you for letting it not be me this time. Appreciate it.

ross

Yeah, alright, you’re welcome. Carrying the load.

nick

Um. There are other retailers out there who, um—

ross

Who are watching this with interest, I’m sure.

nick

I—well, I hope they are. I can’t, again, for various reasons, say who’s next in line, but we’re already deciding—

ross

But you watch yourself, retailer who will not be named.

carrie

Bimbo Bakery.

nick

At the moment it has to be people in DC, that have a physical presence in DC, because that’s the law we’re using.

ross

That’s fascinating, ‘cause all in the span of this one story, we have kind of examples of the system not working but also the system being a great equalizer, to allow you as the sole lawyer at CFI to just weigh into battle Don Quixote style.

nick

Right, you see, thank you, because I’ve been calling it David vs. Goliath style, and that gets really unpopular with the atheists. [Ross and Carrie laugh.] So I’ll call it Don Quixote style.

ross

Oh, there you go. Tilting at Walmart.

nick

Yeah, and I’ll be 100% honest, when I filed these, it was—I expected this was gonna get thrown out, dismissed, because I wouldn’t be taken seriously by the lawyers. But sometimes I think I don’t give myself enough credit on this. They’re actually—they’re taking it seriously. The thing is the amount of money that is at stake is potentially staggering.

ross

Yeah, how big is the homeopathic industry?

nick

The homeopathic industry is—it’s a multi-billion dollar industry in the United States, but we can only sue on the sales inside the District of Columbia. But the way the law is written is it covers three years. So it will be going back for every sale in the past three years, and each sale is a separate offense. And the offense is—the penalty is the cost of the product, or $15,000, whichever is higher. [Ross laughs incredulously and says “oh, okay!”] So potentially CVS could—now, it’s extremely unlikely a judge would allow this, but potentially CVS could be on the hook for, within the District of Columbia, every single sale of homeopathic products they have made for the last three years, plus any time from when I filed onwards.

crosstalk

Nick and Carrie: [In unison] Times 15,000. Carrie: Oh, boy.

ross

I feel like that math maps well to the logic of homeopathy.

nick

I couldn’t agree more. [Ross laughs.] I mean, it would obviously be fantastic. I have dreamt of, you know, I’ve had genuine dreams where I’ve been sitting down and the jury’s reading out, awarding me—

ross

Look how potent that one little perk is.

nick

—148 million dollars in damages.

carrie

Yeah. I keep thinking you should tell CVS like, “Okay, you know what, just keep offering it but you have to accept homeopathic money. So every time it’s three dollars, it’s actually three cents. It’s like one in a hundred.”

nick

Which I actually used that example— [Carrie cheers.] —in my CSICon speech. It was—what was it? There was—there’s homeopathic money, which, you know, the world’s first homeopathic millionaire and it’s like a penny and it’s Monaco’s army being the most powerful army in the world and uh… Yes, it’s as ridiculous as suggesting that Wyoming should have the same number of senators as California.

carrie

[Laughing] Touché.

ross

Well, Carrie. I’m afraid I’m gonna have to interrupt our wonderful discussion with Nick Little—

carrie

Oh, yeah?

ross

—to tell you about one of my Best Fiends.

carrie

Oh, one of your Best Fiends. Not one of your best friends.

ross

No. That’s different.

carrie

So one of your Best Fiends is what, homeopathy?

ross

[Laughing] Yes, but no, I’m talking about Best Fiends, the fiends that I love to be fiends with. That is the game Best Fiends.

carrie

Oh, yes! That game that you like to play on your phone.

ross

Yeah, we’ve talked about it. I had very rapidly accelerated the last time that we talked about Best Fiends, because they are a sponsor of Oh No, Ross and Carrie!

carrie

Oh, right.

ross

We are supported in part by Best Fiends. You can get it on the Apple App store or Google Play, and uh, I am now—I have reached the high level of 790.

carrie

Oh, wow. Seven nine zero. Out of how many?

ross

You know what, I don’t know if this thing ever ends or what—

carrie

Just keeps going and going.

ross

Yeah, it keeps going. I’m traveling through this world. I’ve gone far. I’m showing Carrie as I endlessly scroll across this not flat Earth.

carrie

Very pretty, but not exactly spherical Earth either, ‘cause it’s only going on one axis.

ross

It’s something non euclidean, but uh, yeah there’s some funny physics going on.

carrie

It’s like wheel Earth.

ross

Yeah, it’s a fun game. You collect lots of characters, there’s upgrades to make. It’s a free download, but there’s in-app purchases to help you kind of accelerate through all of this, but you can do it without those as well.

carrie

Who’s your favorite fiend?

ross

Actually, I have two now. Before, it was all about Bam. I still love Bam.

carrie

Mm-hm. It’s a good name.

ross

Yeah, he’s an advanced one. So you have to clear enough strawberries, and then you get Bam— [Carrie laughs.] —and then it clears the whole board. It’s a power move.

carrie

Okay. Enough strawberries, you get Bam.

ross

But now I’ve got another one of those, Rue.

carrie

Oh, she’s cute!

ross

Yeah, kind of like if a panda were to become a bug. [Carrie responds affirmatively.] She has this bright purple ball, and once you hit it three times it starts clearing a bunch of stuff. But yeah, there are little puzzles. It keeps the brain busy. And uh, I’ll play it while I’m watching an episode of Extras with my son, or uh, listening to an audiobook. It’s the kind of thing that doesn’t require the language processing of my brain.

carrie

Gotcha. It’s like a casual game.

ross

Yeah, exactly. Not just for hardcore gamers. You can connect on Facebook with friends, so I’ll see my buddies on there and send them gifts and they send me gifts. There's all kinds of things going, things to track, and uh, it’s very compelling.

carrie

So do you need to be on WiFi?

ross

Amazing fact, no.

carrie

No? Okay.

ross

Another amazing fact, the mark of the beast is forced Sunday worship.

carrie

Oh, right right right, yes.

ross

But going back to these amazing facts, yeah, you can do it offline. Which is pretty cool, ‘cause there’s a lot of games and language learning apps that I use every day and sometimes when you don’t have internet, you’re like, “Oh no! I can’t do this right now!”

carrie

This one you can do right now.

ross

This one you can do right now.

carrie

So engage your brain with fun puzzles and collect tons of cute characters. With over one hundred million downloads, this five-star rated mobile puzzle game is a must-play.

ross

Download Best Fiends free on the Apple App store or Google Play.

carrie

That’s friends without the ‘R’. Best Fiends.

ross

And back to the interview.

carrie

Well, have you thought about doing a—what are they called, a ballot amendment? Like in California, we can basically just say, “Hey, we want to change the law now,” and if you get a hundred thousand people to sign your petition, it goes on the ballot. A ballot initiative, that’s what it’s called.

nick

The trouble with that is that really would be struck down under the concept of preemption straightaway. Which is, preemption is if there’s a federal law about something, a state can’t do anything about it. So a state, for example, can’t ban tobacco. [Carrie responds affirmatively.] Um, you know, because the federal government has regulated the tobacco space.

carrie

Right, and a state can’t now say, “We don’t marry gay people,” or yeah, because that’s against the federal law.

nick

That’s not so much preemption. That’s because the federal constitution has been held to require that same-sex marriages are allowed.

ross

That precedent has been established.

nick

Yeah, guns are one of the best examples of this. There are a lot of restrictions on what limits is a state allowed to—example, can states sue gun manufacturers? Well, the federal government has turned in and given gun manufacturers a lot of exemptions from this. So a state can’t under rule the federal government.

carrie

Okay, I’m following now. I was thinking a ballot initiative that says, for example, in California you have to label this placebo on the label. And then once they're like, oh, this huge market, California, they’re going to end up putting it on all their bottles.

nick

Right. That would be great. My first problem that I see in that is that, yeah, it’s to do with labeling, and they’re just gonna turn around and say the FDA and the FTC control labelling. You are preempted from a state rule about this.

carrie

They didn’t do that with the GMO labeling.

nick

Indeed, but the FDA doesn’t have, to the best of my knowledge, the FDA has no regulations on GMO labeling. [Carrie responds affirmatively.] The other reason is I’m a lawyer, not a lobbyist as well. You’re trying to put me out of a job, which I find kind of offensive. [Ross and Carrie laugh.]

carrie

No! I want to see you outside a bookstore with a—

nick

I would love that to happen. You—part of this is you guys are Californians. You think of ballot initiatives first. One, I’m a lawyer, and two, I’m an East Coast person. We don’t tend to have ballot initiatives in a lot of the states.

carrie

But we sneakily change the whole country with them.

nick

Yes, well, ‘cause you’re rather large.

ross

It’s kind of like Texas with their school books, where they can pull so much weight if they approve a creationist book.

nick

There’s a great book that every skeptic should read. It’s Lies My Teacher Told Me.

ross

Yes! I love that book.

nick

And then Lies Across America is the follow up about monuments. You’ve not read the follow-up?

ross

Not the follow-up.

nick

Read the follow-up.

ross

Okay. So let’s say, best case scenario, we got the non-homeopathic money, the decision in DC, do you start going after those other companies in DC or does this now establish kind of a precedent that you can use in other territories?

nick

The court can only rule on what goes on in the District of Columbia, which as you know is not the biggest place in the world. However, our negotiations with CVS and with Walmart, we’ve made very, very clear that if we settle this, we’re going to walk away from the litigation. You’re doing this nationwide. And if you don’t, we go all the way to court and we win, yeah, I start looking at Virginia’s consumer protection laws and then Maryland’s and then Delaware and then North Carolina, South Carolina. And eventually when I’m like 450 years old, I’ll have got far enough west on these that I’ll do California.

ross

It’ll spread like an infection that homeopathy cannot stop.

nick

Yes. Well, like any infection, then. [Carrie laughs.]

ross

So also in the best case scenario, I don’t know, we’re setting this up for kind of an Erin Brockovich, Dark Waters story. Who plays you in the movie?

nick

Unfortunately, Philip Seymour Hoffman is dead. And I’ve been accused of being Philip Seymour Hoffman—

ross

Oh, is that an accusation?

nick

—even after he’s dead, which is a little disturbing.

carrie

I’m gonna assume they didn’t know he was dead, but okay.

nick

One would hope so. But yes, somebody in a bar in Nashville absolutely refused to accept that I wasn’t Philip Seymour Hoffman.

ross

Well, we’ll bring him back to life and he can play you.

nick

Yes, I was trying to explain that I don’t think he has the same accent.

carrie

No, certainly not. [Ross laughs.] I feel like Peter Sarsgaard would be a good Nick Little. [Ross responds affirmatively.]

nick

I could handle that.

carrie

Yeah? Okay. I’ll call him. Cool cool cool. Now what about this grey area of homeopathy where, you know, they’ve only succussed it twice or whatever, and they say, “This is homeopathic medicine,” but it actually does have an active ingredient in it?

nick

Like Zicam or whatever. [Everyone murmurs in agreement.]

carrie

And it’ll be like, zinc that’s been succussed three times, which is slightly diluted.

ross

Which is an active ingredient, yeah.

carrie

Yeah, what do you do with that? Where does that go?

nick

I mean, our argument is that this is still the same, because in essence we’re not getting involved necessarily in the level of dilution or anything. It’s like, “You have no evidence that this product works for the claims you are making about it.” Also, that’s a problem, I mean, I would love to have in the end, if I have to turn around and not get damages for the sales of zinc. I’m gonna live with that. And believe me, in the first settlement negotiations I had, they raised this whole, “Well, what about homeopathic products that aren’t diluted?” I’m going, “Well, they’re not homeopathic then. Why are you claiming that—”

carrie

That’s a whole other thing.

ross

You’re just performing a different dilution right there.

nick

Right. The fun part of it actually has been like, educating the lawyers on the other side as well. ‘Cause they go into this and a lot of them don’t necessarily know what homeopathy is, and I’ve had friends of mine come up to me, and it’s like, “Nick, I normally really agree with everything you do, but why are you trying to take away my St. John’s Wort?” I’m not, you idiot. [Ross and Carrie laugh.]

carrie

That is how you should approach defense.

nick

Yeah, unfortunately I get a little um, intolerant on this sometimes.

ross

But that’s kind of why we led with that, because yeah, for a lot of people homeopathy is just a synonym for natural medicine and alternative medicine.

carrie

And that whole issue of people labeling something that’s only been diluted twice homeopathy. That doesn’t help clear up the situation.

nick

Absolutely not. And yeah, I think because we did the type of retailers we’re dealing with, if any decision was that they had to move everything except for like, the zinc to a homeopathy section, I think they’d probably move the zinc to the homeopathy section as well. Just ‘cause it would fit in with their marketing strategy.

carrie

Yeah, but then I’m like, oh, then someone might think—someone who’s like, “I’m gonna do a homeopathic overdose” goes over there— [Ross and Nick respond affirmatively.] —overdoses on zinc. I know this is a very small section of the population I’m worrying about. The homeopathic overdosers.

ross

We need— [Laughs] You’re right.

nick

That’s essentially my plan, if I’m allowed to do it, if this goes to trial is to take homeopathic sleeping pills through the entire trial.

carrie

Oh yeah! In the trial. Oh, damn, Nick. Yeah, that’s a good court room movie.

nick

Exactly. Unfortunately—

carrie

Totally. [Chanting] Peter! Peter!

nick

—like all good court room stuff, like, in the movies, it’s like you have to be very careful that a judge doesn’t hold you in contempt and say, “He’s asleep in the cells.” [Ross and Carrie respond affirmatively and laugh.]

ross

Yeah, I’m picturing Miracle on 34th Street where they bring in the big piles of Santa Claus mail. They dump it, and it buries the judge. Yeah, I’m picturing something like that, but with homeopathy.

nick

Yeah, it’s um, unfortunately those things tend to be Hollywood rather than actual real life.

ross 

Aww. So good.

carrie

Yeah. Here is evidence that some people believe this.

ross

I’m picturing, okay, so we have the medicine aisle and there’s the white section on one side and there’s the black section on the other side and then there’s a gradation, and then we put those zinc medicines in the gray area.

carrie

Yeah. Oh, oh, oh, literal gray area. Okay, great. Perfect.

nick

Believe me, I’m looking forward to the problems of sorting out things on the margin on it.

ross

But kind of like the FTC, you have to go after the more clear-cut case first.

nick

Right, and oscillococcinum is just such a categorically stupid, ridiculous thing. It’s like—

carrie

And if it were what it says it is, you’re hurting a nice little duck for no reason. Is it a duck or a goose?

nick

It’s a duck. It’s the Muscovy duck. The active ingredient is the heart and liver of the Muscovy duck.

carrie

Can you believe this bullshit?

ross

Oh.

carrie

I know. At least it’s not in there.

ross

Yeah, you can get a lifetime supply.

nick

Yeah, but that said, I would love to discover just how many duck hearts and livers that they've had to use on this, ‘cause the dilution level is ten to the power of four hundred. And to give you an idea of basically the size of that number, there are believed to be ten to the power of eighty atoms in the known universe.

carrie

Hmm. Well, it’s not—Adam’s not that common a name, so I feel like— [Ross laughs uproariously.]

nick

Are we—is there more—it’s mock Nick’s accent time.

ross

Oh, no no no.

nick

I’m now just hurt and offended.

ross

This is just wanton punning.

carrie

Those are the same words to us.

nick

Yes. Yeah, I mean, these are problems I will love to have in the future. Truly hope I do have them.

ross

Well, while we’re tilting at Walmart, are there any fun victories that you’ve had in your tenure at CFI?

ross

Well, we work on the secular celebrant matter, which is, you know, letting the people we train perform marriages and actually the technical term is solemnize a marriage, which is signing the certificate.

ross

I need to get in on that, because I must admit, I’m a member of the universal life church. I’ve officiated eight weddings now.

nick

Yes, and you can do that because it calls itself a religion. If we called ourselves religious, we’d be allowed to do it, and that’s the—

ross

But you’re standing on principle.

nick

—asinine nature of this. So, we won that in Indiana. Well, we actually lost in Indiana, then won on appeal at the seventh circuit. Then we won in Illinois. There’s big—we’ve done this by legislation in DC, and in Washington, and maybe Oregon. We are currently—we have a lawsuit in Michigan and a lawsuit in Texas on this, and we lost in Texas and it was just one of the words opinions I’ve ever read. Like, it should have come in crayon, because it looked like it was written by a five year old.

ross

We know a guy in Texas with crayons. [Nick stammers.]

carrie

We’ll tell you about it later.

nick

Yes. And so we’re appealing that to the fifth circuit, and if we lose at the fifth circuit, we’re then appealing to the supreme court. So yeah, that’s good. There’s been a lot of like, small victories, like with the libel things. Like, it was a murder case where a person had beaten his I believe 8 year old son to death with a belt as part of an exorcism. [Ross responds despondently.] Yeah. And it was this horrible, horrible, horrific case, and we’d commented on it, and he—I believe he lived in Georgia and he attended church just across the border in Tennessee. And we, in an article, mistakenly said he lived in Tennessee and attended church across the border in Georgia.

ross

Oh, horrible of you to do that, to get that wrong. Oh, jeez.

nick

Absolutely. So I was speaking to their lawyer, and it’s—I go, “This is kind of ridiculous, isn’t it?” And he’s like, “Well, we want you to publish a correction.” And I was like, “Okay, I will write a correction.” And so, my correction was, “We apologize for saying that Mister John Smith, currently serving a life sentence in whatever penitentiary for beating his 8 year old son to death with a belt, was born in—lived in Georgia and went to church in Tennessee, whereas in fact, Mister John Smith who—”

crosstalk

Everyone, overlapping: “—beat his son to death—”

nick

“—with a belt and is currently serving a life sentence was the other way around.” So those things are just fun.

ross

Yeah, that’s doing it right.

nick

Carrie herself, you were sued—threatened with being sued by the Raëlian.

carrie

Oh yeah, the Raëlian, yeah. Well, they threatened to sue us on the show, and then they also threatened to sue Skeptical Inquirer. Yeah.

ross

Oh yeah, they were putting the pressure on wherever they could.

nick

‘Cause you were saying they were sex obsessed.

carrie

No, because—

nick

Oh, was the sex obsessed people a different one?

carrie

They are sex ob—I’ll say it here, they are sex obsessed. [Laughs] But no, it was that they had put out materials many years ago suggesting that parents should encourage sort of mutual masturbation with their children. Which they had.

nick

Right, yeah, and there’s that thing in the video telling—

ross

[Laughing] The look on Nick’s face.

nick

—the truth. You’re kind of okay. But no, there were some fun conversations back and forth, which were just like—I was just winding them up, winding the lawyers up by the end. Because, you know, we’re not backing down on this.

ross

You enjoy that kind of exchange?

nick

I do. I do like—there’s a lot of lawyers who are bullies. Not just lawyers but in particular, people try to use the law in bullying ways. For example, back when I worked for profit, I used to volunteer at a legal clinic, where you would just deal with these incredibly small matters that could normally be taken care of with one letter on letterhead. Like, somebody’s landlord was not repairing their hot water, and these other things, and they make a huge difference to the person concerned. And also it gives you the chance to play the caped crusader, because they would always try, when dealing with the low income person, they’d try and maintain they knew the law on this and try and use the law to bully them. And when you can come in and just turn it around, it’s like, no, you’re dealing with somebody who actually knows what they’re talking about now.

ross

Because it can be used as such an intimidation factor for people who don’t know the law, or have connections.

nick

And here are 15 counter-suits I will bring against you if you proceed with this. If you want to play this game, let’s play this game. But understand, I’m an awful lot better at it than you are. [Ross and Carrie laugh.] So it’ll be bad for you. And you get like that with some of the complaints we get against articles written. We write a lot of articles about fake doctors and psychics, and they get really mad when you call them grief vampires, as I believe the fun term for psychics, so.

carrie

Mediums, anyway, yeah.

nick

Yes. Yes, uh, those who claim to talk to the dead. So, I do enjoy that side of it. I mean, there are frustrating things, because I’m the guy who tells you to stop having fun. You come to me and ask, “Can I do this?” and it’s like, “Probably, but I’d sleep a lot better if you didn’t do it.” So I’m the killjoy.

ross

Has Nick killed your fun, Carrie?

carrie

No, I don’t—no. I don’t think so.

nick

It’s ‘cause I’m scared of you.

carrie 

I can’t think of any time—you’re scared of me?

nick

Absolutely terrified.

carrie

[Laughing] What do you think I’ll do?

nick

I have no idea, and that’s what scares me.

carrie

Okay, alright. I don’t know how I earned this, but I’m proud of it.

nick

But no, you haven’t—I’ve never had to tell you no, but I’ve had to tell some of the people. It’s like, the word “quack” for example is a very bad word to use in certain—unless—

ross

Has legal ramifications.

nick

Yes. And I know, I get writers saying to me, “Well, this person is a quack.” And I know that, and you know that, but—

ross

Yeah, what are the words you can use, bullshitter?

nick

Oh, all of those, yeah. But quack has a very specific history.

ross

That was the whole premise of Pen and Teller’s bullshit, is that they said, “Well, we can’t call these people falsely practicing all these other, more sophisticated terms, but we can call them assholes. We can call them bullshitters.”

nick

And quack as well has a very specific meaning that can get you in trouble on that, because if a person believes what they’re doing, so if like, a naturopath believes what they’re doing, I think technically they’re not a quack.

carrie

Oh, so there’s some intent applied.

nick

Yes. Someone who knows what they are doing is—

ross

People are pedantic about lying. Like, “Oh, well you’re only lying if you consciously know that what you’re saying is false.”

carrie

Oh, interesting. That’s how I interpret that word. I wouldn’t even find that pedantic. When the New York Times said like, “Yeah, that’s why we don’t say Trump is lying. We can’t prove he’s lying.” I was like, “Yeah, obviously.”

nick

Because we’re confusing incredibly stupid—

carrie

I’m on the New York Times’ side on that.

ross

I think you have kind of a common understanding of peddling for false information versus knowingly deceiving others. And yeah, I think it gets used interchangeably in both, and I think the conversation can often just be a distraction, but I get the technical sense there.

carrie

Yeah so, just so people who are listening who think like, “Oh shoot, should I not be calling people quacks now?” You’re not saying like—I think people often get confused about, if someone can sue me, what does that mean? Does that mean it’s illegal? Does that mean that I’m going to actually go bankrupt or whatever? You can so these things, there’s just risks attached to them, and you need to understand what those risks are.

nick

And law suits are like robbing banks. You know, you rob banks because that’s where the money is. And in a law suit, you tend to sue the people with the deep pockets. [Ross and Carrie respond affirmatively.] One of the first law suits I was ever involved with, I sat in on a deposition, which was a pastor from Tennessee who had received like, 75% body burns from a static shock fire at a gas pump. [Carrie hums thoughtfully. Ross responds with an emphatic “woah”.] And we were representing the rubber company that had manufactured the hose that connected the pump to the other pump.

ross

That’s interesting. I had heard that was kind of an unfounded fear, that that happens.

nick

Right, and I’m sure it was an unfounded fear. I never went all the way through on this case. But he had actually suffered burns, and you know, part of the defense was that he had made stupid decisions himself. Like, he was filling it up in the back of his pickup truck, and he was filling an open container. [Carrie responds affirmatively multiple times, saying “oh”.] Right.

ross

Ah, alright. Complicates the story.

nick

But again, when you look at it, you don’t want to put a pastor who volunteers at a summer camp for underprivileged children, you know, putting him on the stand. He’s gonna be appealing to the jury wherev—they’re not gonna care that he made mistakes, you know. So yeah, we—so clearly there was no way that the manufacturer of the rubber hose had anything to do with this accident, whatever happened. But it was a fortune whatever company, it was a very big company, so you bring them in now—and I’ve completely forgotten what question you asked me that led me to this.

carrie

[Laughs] We were talking about how when something is not illegal but there’s a risk attached to it.

nick

Right, if a person who’s listening on this who decides, you know, they’re posting on Facebook or their blog that doctor whatever down the street is a quack. You know, I went in and he did this. Yeah, I mean, could the doctor sue you? Yeah.

carrie

Will the doctor win?

nick

Will the doctor win? Probably not. Also, why would they sue you? It’s just not worth their time, because of the Streisand effect of things. On the other hand, we—

ross

The Streisand effect being they are bringing a lot of attention to themselves, like Barbara Streisand did when she tried to keep people from posting photos of her beachside property, and then everybody wanted to see pictures of her property.

nick

Absolutely, and yeah, they will sue people—world famous podcast hosts such as yourselves, or magazines like Skeptical Inquirer that carry, you know, publisher’s insurance.

ross

And often times, it seems like some of the benefit to be had is just in terms of being able to publicize that the lawsuit is taking place. [Nick responds affirmatively.] Yeah. “Hey look, we sued so-and-so.” At least now it’s a news item, it’s a publicity release.

carrie

And now when other people dare to go against us, we can say, “We sued these other people, you don’t want to mess with us.”

nick

Which at law school was always called the Sears strategy. Like, Sears-Roebuck with the catalogue had a policy. If you didn’t pay, regardless of how small the debt was, they would take it to court in the end. Despite the fact they’d lose thousands and thousands, tens of thousands of dollars on an individual case. They created the reputation that—

ross

They want people to fear.

nick

Yeah, we are not the people to not pay.

carrie

Oh, right. Oh, like the director who fires someone the first day on set just so everyone else knows he doesn’t put up with shit.

ross

Make an example of this one. Huh. That seems like that could really backfire too, like—

nick

Yeah, and there are companies out there and there are people who are known to be litigious. I mean, one of them in—located largely in Los Angeles, and is uh—

carrie

I was just gonna say. When we—

nick

—is a religion.

carrie

—when we, um, Scientology is what Nick’s talking about, when— [She breaks off, laughing.]

nick

Notice I did not say the word.

ross

Look how careful Nick was being.

carrie

When Ross and I investigated Scientology, you have no idea the number of emails and phone calls we got that were like, “You guys need to be careful, they love to sue people!” And we were like, “Oh my god, we never heard about that. This is totally news to us, oh my god.”

ross

“What? Oh, thanks for letting me know.”

carrie

But I think that had just worked on everybody’s minds, where it was just like, they’re too scary.

ross

Synonymous.

nick

Yeah, and it’s always been—I mean, I would love a lawsuit against Scientology. I would love to bring one.

carrie

I can make that happen for you.

nick

But it’s gotta be a good one because—

ross

Is she scaring you again?

nick

—with the way they fight, I need to have all the ducks in a row before going into that. But I’ll happily look at it. And people have brought me various cases, and I’m just like, “No, I’m sorry, I sympathize with you and I understand this, but I just can’t win against their resources on the fact that your father gave away your inheritance to them, ‘cause it was his money.”

carrie

Yeah, something horrible can happen to you and that doesn’t necessarily mean you have recourse in the court.

nick

Right, and even if you do, technically speaking, have a legal recourse, you may well not win.

ross

So much strategy.

nick

Yeah. I don’t think it’s any secret that I, and many church-state separation lawyers, would love to see a suit against them.

ross

Or see them lose their tax exempt status.

nick

Yeah. I actually—I find that I’m very much torn on that, because—

carrie

Me, too. I’m against it, actually.

nick

—on the one hand—

ross

Really?

nick

—it’s like, is Scientology a religion?

carrie

Yes.

nick

There are people out there who will say no on it. I’m not a philosopher. I don’t know exactly how we define religion. I’m incredibly wary of giving the government the power to determine what is a religion and what isn’t. [Carrie responds affirmatively.] Because they will not use that power for good. Like, Germany has banned Scientology, I believe.

carrie

I think it was Sweden? I thought it was Sweden.

ross

I had Germany in mind, but.

carrie

Oh, okay. Maybe it was them.

nick

Yeah, and it’s very disturbing when Germany starts doing anything to do with religion.

carrie

Oh, sure. Yeah.

ross

Curtailing free speech or religion, yeah.

nick

So I’d love to see, when Scientology breaks the law I’d love to see it nailed to the wall for any legal breaks that may occur.

ross 

Because ideally you always want the problems for those groups to come from the bottom up. You want people at a grassroots level to realize this is wrong and turn away from it. But that’s not always possible, sometimes you do need a top down approach where you say, “You know what? We’re gonna slap you on the wrist and say cut that out.”

nick

Right, and in an ideal world people would stop buying homeopathy, because it’s nonsense. And as I’ve explained to the people at CVS and Walmart, that is our job, is to educate people for the positive reasons why don’t buy this stuff. But their job is to not trick people into buying homeopathy. So, yeah, I mean we have pretty strict laws on this, and I would be worried if I saw religious groups losing those kind of tax exemptions. Now, maybe we need to change the entire system of tax exemptions as they apply to religions.

ross

So that it’s consistent.

nick

That’s a perfectly legitimate argument. But when we start focusing in on looking particularly at certain popular religions.

ross

Though I think you can also point to, just in Scientology’s case, the origin of how they got that tax exempt status, and that there was a ton of bullying and subterfuge involved in that.

nick

Oh, absolutely. And there’s that great old quote of, “If I wanted to make a million dollars, I’d—”

carrie

“—form a religion,” yeah. It may be apocryphal now.

nick

Oh, it is?

carrie

It may be.

ross

Yeah. Harlan Ellison said he heard L. Ron Hubbard say that.

nick

Right. And yet it makes no legal difference.

ross

Here we get to that problem of lying again. You know, I think the problem is you could never fully prove that someone actually knows that they’re giving false information. They could be deluded.

nick

They could be. Yeah, so it—unfortunately, yeah. I describe homeopathy as the Scientology of med, because it’s like, the really out there one and—

ross

Oh right. I have a Mormon cousin, the husband of my cousin, and he worked for the church. And one time he asked me, you know, “Why is it that Christians and atheists can kind of get together and poke fun at Mormons?” And so, my response was, “Well, kind of for the same reason you and I can have a really fun conversation about Scientology. ‘Cause for us it stands out like, ‘Well, that’s obviously—that can’t be true.’”

nick

And yeah, there’s a lot of sort of the—

ross

And he said, “Oh.” [Carrie laughs.]

nick

There’s a lot of things in that, sort of like, the underwear, the multiple wives, you know, not that that happens anymore. But the— [Carrie says “well” and she and Ross laugh quietly.] There are—all religions, if you do an analysis of them, you can describe them in ways that just make them look fundamentally ridiculous.

ross

Yeah, the outsider test of faith.

nick

So you worship, yeah, there’s a zombie guy who—

ross

And I’m sorry, you drink his blood?

nick

Yeah. And you can make those and—what is—there’s the whole argument of what’s the difference between a religion and a cult, and whether it’s—is it time, is it—

carrie

—size.

ross

The obscurity of its foundings.

nick

Did you castrate people and get them to commit suicide while waiting for a UFO to arrive, probably puts it firmly in the cult category.

ross

There’s so many gray areas.

nick

But, you know, you can’t have the government making that decision. It’s like, the government simply can’t be saying these are the acceptable religions and these are the bad ones. Which is why, in my mind, this whole notion of exemptions to general laws for a religion, I don’t see any way of doing that fairly, because you can just—

carrie

Yeah, just tax churches. Just tax churches.

nick

Right. Well, I would like to see churches treated the same as other nonprofits for tax exemption.

carrie

Okay. Sure, that’s better.

nick

So at the moment—

ross

They have to demonstrate a certain fiscal responsibility and a positive impact.

nick

There’s a specific category that you, like, religious groups.

ross

They have to publish their earnings.

nick

So let them apply as educational groups. Absolutely, the Catholic church that has a soup kitchen, that soup kitchen should be tax exempt. I’m just not sure the building with the nice stained glass window and everything, that that side of it should automatically be tax exempt. Make them file the same information we file. That’s the first stage, is let’s make it fair.

ross

I like it.

carrie

I like it too.

ross

Well, obviously the legal system can be used many different ways, for good and for ill. We really appreciate having people like you out there, using it for good.

nick

Thank you.

carrie

I agree.

nick

Thank you.

ross

Well, that’s it for our show. Our theme music is by Brian Keith Dalton. Our administrative manager is Ian Kramer.

carrie

You can support this and all our interviews and investigations at MaximumFun.org/donate.

ross 

We’d also really like to thank CFI for housing us here, Jim Underdown for having us in his office tonight. Yeah, you can also follow us on social media at OhNoPodcast on Twitter.

carrie

And Facebook.com/onrac. Oh, and maybe go to my Etsy store. There may still be shirts when this is released. If not, go look at my Etsy store anyway.

ross

Be sure to give us positive ratings wherever you found us, wherever you download us. Tell your friends about us. And uh, spread the word.

carrie

And remember!

nick

Homeopathy is really, really, really stupid. Don’t buy it. [Ross and Carrie laugh.]

music

ONRAC Theme Song

promo

Music: Quiet rock. Aimee Mann: Hello, this is Aimee Mann. Ted Leo: And I'm Ted Leo. Aimee: And we have a podcast called The Art of Process. Ted: We've been lucky enough over the past year to talk to some of our friends and acquaintances from across the creative spectrum to find out how they actually work. Speaker 1: And so I have to write material that makes sense and makes people laugh. I also have to think about what I'm saying to people. Speaker 2: If I kick your ass, I'll make you famous. Speaker 3: The fight to get LGBTQ representation in the show. Ted & Aimee: Mm-hm. Speaker 4: We weirdly don't know as many musicians as you would expect. Speaker 5: I really just became a political speech writer by accident. Speaker 6: I'm realizing that I have accidentally, uhhh, pulled my pants down. [Someone starts to laugh.] Ted: Listen and subscribe at MaximumFun.org or wherever you get your podcasts. Speaker 7: It's like if the guinea pig was complicit in helping the scientist. [Music ends.]

speaker 1

MaximumFun.org.

speaker 2

Comedy and culture.

speaker 3

Artist owned—

speaker 4

—Audience supported.

About the show

Welcome to Oh No, Ross and Carrie!, the show where we don’t just report on fringe science, spirituality, and claims of the paranormal, but take part ourselves. Follow us as we join religions, undergo alternative treatments, seek out the paranormal, and always find the humor in life’s biggest mysteries. We show up – so you don’t have to. Every week we share a new investigation, interview, or update.

Follow @ohnopodcast on Twitter and join the Facebook group!

People

How to listen

Stream or download episodes directly from our website, or listen via your favorite podcatcher!

Share this show