Current Events in November 2006

Smoking has been found to contribute to poorer outcomes for people treated for many kinds of cancer and now, researchers at Fox Chase Cancer Center have associated smoking and acute side-effects following radiation therapy for prostate cancer.

The study was presented at the 48th Annual Meeting of the American Society for Therapeutic Radiology and Oncology in Philadelphia.

For the study, researchers analyzed the impact of smoking on gastrointestinal (GI) and genitourinary (GU) side effects for 1,194 patients with prostate cancer treated at Fox Chase Cancer Center with 3D conformal radiation therapy between 1991 and 2001.

Smoking information collected prior to treatment included status as a current smoker, ex-smoker or non-smoker. Patients treated with androgen deprivation prior to or during treatment were excluded.

"Our patients who smoked during treatment reported having more acute gastrointestinal side-effects such as diarrhea," said Niraj Pahlajani, M.D., lead author on the study and a resident in the radiation oncology department at Fox Chase.

"Fortunately, smoking didn't appear to impact long-term GI side effects or genitourinary side-effects. These results underscore the importance of smoking cessation prior to radiation therapy," the authors said.

Smoking had been implicated in earlier studies with an increased risk of radiation-related side effects in cancers of the head and neck, cervix, lung and breast.

An Iowa court has ordered Vision Improvement Technologies, Inc., to immediately stop selling its so-called natural vision improvement kit called the "See Clearly Method." The court also ordered the company to pay $200,000 for consumer restitution.

The court order resolves a consumer fraud lawsuit filed last year by Iowa Attorney General Tom Miller, which alleged that the company could not substantiate claims that the "See Clearly Method" improved people's vision so much that they would no longer need glasses or contact lenses.

The "See Clearly Method" was a kit of manuals, charts, videos and audio-tapes demonstrating eye exercises and other techniques, such as focusing eyes using special charts or props, facing a bright light with eyes closed at a distance of a few inches, covering eyes with hands for sustained periods, and applying hot and cold wash cloths over closed eyes.

The company sold tens of thousands of the kits for about $350 apiece.

"The company made dramatic claims for its product that it could not substantiate," Miller said.

"They represented that consumers who used the method could quickly and easily free themselves of having to wear glasses or contact lenses. They used illegal tactics including exaggerated claims of effectiveness, false implications of scientific validity, and misleading consumer testimonials in advertising," he said.

"We also alleged that a so-called 'risk-free' 30-day trial period was deceptively presented and ended up forcing many consumers to pay hundreds of dollars apiece for a product that they wanted to return because it did not help them," Miller said.

Polk County District Court Judge Don C. Nickerson entered a consent judgment resolving the Attorney General's lawsuit. The order was agreed to by Vision Improvement Technologies, Inc. (VIT) and the individual defendants: Cliff Rose, David E. Sykes, David W. Muris, and Gary Korf. The defendants denied violations of the Consumer Fraud Act.

VIT and all defendants must comply with numerous orders under the Consent Judgment:

• VIT must stop all sales of the "See Clearly Method" as of Nov.1, and cease business altogether by December 22, 2006, or as soon thereafter as possible.

• VIT paid $200,000 yesterday into a fund the Attorney General can use for restitution to consumers, and paid $20,000 to Iowa's Consumer Fraud Elderly Victim Fund.

• VIT must remove all negative credit reports lodged against consumers since the marketing of the "See Clearly Method" began about six years ago.

• VIT and all defendants are prohibited from numerous deceptive practices alleged by the Attorney General, including failing to substantiate claims, abusing testimonials in advertising, and making misleading claims.

"It is particularly important that a company be able to substantiate that its product works when there are so many challenges to the principles and techniques supposedly under girding the claims," Miller said. "Iowa law requires a seller to be able to substantiate such ambitious claims, but this company could not do so."

Many consumers relying on NutriSystem as an easy way to lose weight have been left with a bad taste in their mouths.

ConsumerAffairs.com has received 33 complaints, nine in the past month, about the NutriSystem weight loss program. The complaints are not usually about a lack of results, but rather, the distasteful food and lack of variety the diet offers.

NutriSystem works by giving a person all the food they need. The point is that it's easy to follow the diet because all the food a customer would need is provided in a simple menu.

The food is pre-packaged, mailed and can be stored in the open air. The customer just has to open the sealed foods and prepare them accordingly. However, many customers are saying that the food is salty and revolting to eat and to look at.

"The dehydrated hamburger becomes meat mush when prepared. Tuna and chicken salad are puree. The chocolates are like eating sawdust," Donna of Rockport, Texas wrote.

"I finally cancelled despite my resolve to stick to it when I opened a dinner entree (tuna casserole) and actually found the smell so revolting I threw it away. I cringe every time I see one of the NutriSystem commercials and hear the testimonial of delicious food. I cannot believe that anyone could even call this food acceptable much less delicious," she said

Goulda Downer, Ph.D., a registered dietician who heads Metroplex Health and Nutrition Services in Washington, D.C. wrote in an e-mail, "Some of my patients have complained that the meals are bland, unpalatable, and 'taste like cardboard.'"

Nutrisystem offers two choices when it comes to choosing a meal plan. The customer can either save $40 per month and let Nutrisystem choose their meals or they can pick their own.

Because of the unappatizing nature of many of the dishes, many consumers opt for the more pricy and selective plan. However, ConsumerAffairs.com has received many complaints from consumers saying that about 25 percent of their meals were not what they ordered.

"I am in my third month of ordering from NutriSystem," wrote Cate of St. Louis, Mo. "I order online and pay extra for the privilege of ordering the meals I want rather than doing the automatic ship where they choose the meals. For two of the three months I have ordered, they have shipped me substituted items, and I quote here from the letter that arrives with my order:

"Due to unusually high demand for our weight loss program, we are experiencing temporary shortages of some of our food products. Because of this, we may have had to substitute some items which you ordered that were out of stock with others of comparable value. We apologize for this temporary inconvenience, and thank you for your understanding in this matter."

"Of the 112 items in my last order (28 days worth), 32 items, (29%) were substitutes," Cate continued. "It is unconscionable to me that they would arbitrarily opt to substitute almost a third of my entire order."

That recent letter states that this is a temporary problem. However, ConsumerAffairs.com has received complaints about missing or substituted items dating back to Nov. 18, 2005.

What To Do?

Consumers who are tired of having their meals substituted should stretch their ConsumerAffairs.com muscle just as Danette of Apopka, Fla. did:

"The first month, I decided to customize my order to select things I felt were edible," Danette wrote. "My order arrived and most of the items I spent the time custom-selecting were not there ... NutriSystem substituted them. I placed a call to NutriSystem and was advised that their policy is to substitute and they are not required to advise the customer. When I advised them that I was going to file a complaint with ConsumerAffairs.com and my credit card company, they did agree to have Fed Ex pick up the shipment and they would cover the costs."

Too Much Salt

Many consumers have also complained that the meals are extraordinarily salty.

"Their food is like eating straight salt," wrote S. of Woodbury, Minn. "I emailed customer service asking if they offer or were planning to offer lower salt foods but of course, received no response. How can you lose weight when you are retaining water from eating so much salt?"

The NutriSystem website claims that per USDA recommendations, the meals contain, "less than the recommended limit of sodium intake."

"NutriSystem have stated that their meals contain less than the recommended limit of sodium intake," Downer wrote. "This is questionable since their program is based on providing prepackaged process meals (these are typically high in sodium). Most of the sodium in our diet is found mainly in processed and prepared foods. The balance comes from the salt added at the table and in cooking. To preserve shelf life, taste and texture of many foods, manufacturers use salt or other sodium containing compounds.

"While sodium is an essential nutrient, and we do need some in our diet, it should be in moderate amounts," Downer continued. "A daily value of 2,400 mg per day, just about a level teaspoon of salt, is the recommended intake for most Americans."

NutriSystem is not particularly cheap either. Most plans cost $290 to $340 per month.

A Better Way

Overall, Downer does not believe NutriSystem is the best way to lose weight.

"If you follow the 1200-1500 calorie diet stipulated by NutriSystem most people may lose some weight," Downer wrote. "However, the average individual eating the same amount of calories, without the high cost could achieve the same results. While NutriSystem prepackaged meals is a convenience for some there are better and healthier alternatives to weight loss."

"Not only are these programs costly, but the quality and texture of many meals are unpalatable. Unless people intend to eat NutriSystem prepackaged meals for the rest of their lives, they must learn the importance of preparing healthy meals. After all, there is life after NutriSystem."

"There is no substitute for understanding the value in learning how to eat regular healthy foods, and portion control," Downer wrote. "Furthermore such a low calorie diet must be carefully planned to meet the minimum daily values (DV) for most nutrients."

Downer suggests people who want to lose weight should practice moderation. A healthy balance of all types of foods coupled with lots of physical activity is a healthy way to lose weight.

For more information on healthy dieting visit the American Dietetic Association website, www.eatright.org.

ConsumerAffairs.com tried to get in contact with NutriSystem but all our calls went unanswered.

If you're noticing extra money being drained from your account every time you use an ATM, it's not an illusion. The fees banks charge for using ATMs, and for many other commonplace transactions, are indeed on the rise.

Bankrate.com released its "Fall Checking Account Pricing Study" on Oct. 30th. The principal findings of the study included a spike in ATM fees to an average of $1.64 per transaction, an increase from $1.60 in the spring of 2006, and $1.54 in fall 2005.

Fees for bounced checks, or what the industry calls "non-sufficient funds (NSF)," also hit an all-time high. Bouncing a check can cost a customer an average of $27.40 per failed transaction, an increase of 36 cents from the survey conducted in the spring of 2006.

Bouncing more than a few checks can not only get a customer's bank account closed, but they can be reported to the ChexSystems database clearinghouse for NSF activity.

Once a customer is reported to ChexSystems, it becomes nearly impossible to open new credit or bank accounts, and it takes as long as five years to remove oneself from the database.

The news is grim even if you're not wasting money with bank fees. The average balance required to maintain an interest-bearing checking account rose to $2,600, but the actual interest earned averaged only 0.34 percent a year.

Big Bucks

Banks are making huge money off fees, with profits expected to top $55 billion this year alone.

Although banks are imposing fees on all manner of transactions, the largest slice of the pie still comes from credit card fees, which provided banks $24 billion in income this year alone.

Part of banks' increasing reliance on punitive fees comes from the slowdown in investing that has been accompanying the steady hike in interest lending rates.

As consumers and homeowners grow more gun-shy about taking out expensive new loans, banks lose money and need to recoup.

The Government Accountability Office (GAO) recently published a study that found punitive fees for credit cards were at an all-time high, and the disclosures explaining them to consumers were often poorly written and hard to decipher.

What You Can Do

Whether it's getting jerked with surprise credit card fees or just watching your money be siphoned away through ATM surcharges, you have options on how to get the most bang for your buck.

• Shop for a better deal. Banks are frantically pursuing new customers, and even the most cursory Internet search can yield comparisons on what checking account lets you keep the most of your money. Negotiate with your bank to see if they'll cut you a deal, and don't hesitate to take another bank's offer if yours isn't willing to keep your business.

• Consider credit unions. Credit unions generally offer better banking terms, including low or no ATM surcharges, reimbursement for ATM fees outside your network, better lending rates for credit cards, and higher rates for interest-bearing accounts. The National Credit Union Association can help you find a credit union you're qualified to join.

• Make your money grow. Rather than waste money with an expensive interest checking account, set up a simple free checking account and divert your extra money to a high-yield savings account or money market account. Many banks will find ways to charge users of free checking accounts for check images or online bill paying, so research carefully to avoid any pitfalls.

While complaints about the press are nothing new, it's unusual for a newspaper editorial to be blamed for someone's death. But in the small town of Winnsboro, Texas, friends of innkeeper Paul Bear blame the Winnsboro Newsfor Bear's suicide.

Bear and his partner, Tim Carmichael, ran a bed-and-breakfast inn, the Hubbell House, and worked to build Winnsboro's image as a quaint weekend get-away destination for city dwellers. Among their promotional efforts was a Web site for their inn.

Given the rock-ribbed conservatism of Winnsboro, population 3,500, Bear and Carmichael kept their sexuality to themselves, friends said, but in August 2003, a scathing editorial in the local weekly paper brought it into the open.

Condemning the men's lifestyle as "despicable" and "disgusting," the editorial accused the two of "promoting the gay lifestyle in Winnsboro, Texas." The paper's editor, Tom Pendergast, said that he had seen with his own eyes an "almost bestial" online ad inviting gay men to come to Winnsboro for sex and good times.

Pendergast said he feels no responsibility for Bear's death and noted that the suicide occurred more than two years after the editorial appeared.

The ad appeared on Glimpse.com, a gay dating site, although Carmichael and Bear insisted they had not placed the advertisement and speculated it had been a prank perpetrated by their enemies, according to the Dallas Observer.

Pendergast's editorial condemned the two for promoting "a despicable lifestyle that is antithetical to the values of most Winnsboro residents."

After the editorial ran, Carmichael said he and Bear began receiving threatening phone calls at all hours. Dead animals were thrown into their yard and stuffed into their mailbox, driving away their guests.

Bothered by the reaction to the news, Bear, who suffered from bipolar disorder, took off on a cross-country gambling spree. In early June 2005, a truck driver spotted a car off the road near a rest stop on Highway 80 near Winnsboro.

A note taped to the car's window said: "Do not walk down by the railroad track, for I am hanging from a tree." Police recovered Bear's body and found a two-page farewell letter to Carmichael.

Pendergast said the Dallas Observer story has had little impact in Winnsboro, just as the 2003 editorial provoked little reaction from his readers. He said his editorial resulted from a letter Bear had written to him criticizing the newspaper.

"I printed his letter, then I got a call from a friend of mine telling me I ought to take a look at the Website," Pendergast told ConsumerAffairs.com. "I did and it was just awful, just salacious, as I said in my editorial."

Pendergast said Bear appeared in his office and angrily denounced him the day after the editorial appeared.

"He came in here and called me a homophobe and everything else, and I said the editorial speaks for itself," Pendergast said. "I didn't have any further contact with him. He went to Las Vegas or somewhere and spent a lot of their joint money, then came back here and hanged himself."

Townspeople quoted by the Dallas Observer say Pendergast's newspaper bullies and picks on those who incur Pendergast's wrath. Pendergast says his brand of journalism is tough but fair and said he has no regrets about his handling of the Hubbell House story.

In the 20 years he has been running the paper, it has won the Headliner Foundation Award three times and has been cited for community service by the North & East Texas Press Association more than any similar-sized publication, Pendergast said.

It's hardly the first time Pendergast, 73, a former Associated Press executive, has been at the center of a controversy. An AP reporter, editor and bureau chief in New Orleans, St. Louis and Los Angeles, Pendergast fought his way to one of the AP's top jobs -- Vice President and Director of Personnel -- in the 1970s.

In the rough-and-tumble politics of a heavily-unionized worldwide news operation, Pendergast was never seen as timid, former AP executives recalled. "You did not want to have Pendergast mad at you," said one.

Pendergast retired from the AP in 1985 and bought the Winnsboro newspaper a short time later.

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Editor's note: James R. Hood was an AP editor and executive in New York and Washington, D.C., during the 1970s and '80s and worked with Pendergast during that period.

Industries track visitors to Web sites, categorizing every click of the mouse and unique "hit" on a site in an effort to target advertising pitches and get surfers buying their products.

Now two consumerist groups are demanding that the Federal Trade Commission (FTC) take action against companies that collect data on visitors through online advertising.

The Center for Digital Democracy (CDD) and the U.S. Public Interest Research Group (PIRG) filed a 50-page brief with the FTC, urging the agency to focus greater scrutiny on and possibly tighten regulation of online advertising.

"The emergence of this on-line tracking and profiling system has snuck up on both consumers and policymakers and is much more than a privacy issue," PIRG's Ed Mierzwinski said in a statement. "Its effect has been to put enormous amounts of consumer information into the hands of sellers, leaving buyer-consumers at risk of unfair pricing schemes and with fewer choices than the Internet is touted to provide."

The report analyzes five specific techniques advertisers and marketers use to lure "window shopping" surfers into becoming repeat customers: User tracking, data mining, behavioral marketing, audience segmentation, and industry consolidation.

"Audience segmentation," for example, involves advertisers and analysts sifting through data gleaned from Web surfers' visits and breaking them down into categories for easier marketing. Different categories include "family planners," "coupon clippers," and so on.

The brief investigated techniques used to track visits to Web sites, such as using specific "pixels" to deliver data back to observers when portions of sites are clicked on.

The report quoted extensively from filings belonging to business software company Omniture, which collects multiple levels of customer information and builds profiles from anonymous data records of Web site visits.

Omniture stated in a filing with the Securities & Exchange Commission (SEC) that complying with laws that require explicit consent for information gathering would cost it money and business.

"Even if our customers succeeded in developing new procedures, they might be unable to convince Internet users to agree to the collection and use of the users' information," the company said. "This would negatively impact our revenues, growth and potential for expanding our business and could cause our stock price to decline."

Microsoft's Watching You

Although the report also targeted the advertising and privacy practices of such Web giants as Google and Yahoo, it reserved its heaviest criticism for Microsoft, which the Center for Digital Democracy's Jeff Chester said was "rewriting the rules that govern the online marketplace."

Chester cited Microsoft's "AdCenter" digital advertising initiative, which harvests and categorizes user data from Microsoft's many services, ranging from its interactive Xbox Live online game platform, to its MSN Spaces blogging community, to Hotmail and its 30 million-plus e-mail subscribers.

The report claimed that Microsoft was using data gleaned from its services without users' knowledge to deliver "targeted and personalized advertising" in the hopes of turning users into customers, a plan Chester called "deceptive and unfair."

The consumer groups' appeal to the FTC was timed to coincide with "Techade," a series of hearings set for Nov. 6th-8th in Washington, D.C. that deal with the changes in marketing technologies and how the Internet presents both opportunity and danger to consumers.

Chester said that the FTC has largely ignored its duties as an advocate for consumers and needs to step up its efforts to regulate collection of individuals' data. "The public interest matters...[It] is the FTC's responsibility to protect and promote that vital perspective, by issuing injunctions against the most egregious of the new invasive advertising practices."

Some bars and restaurants have been exempted from smoking bans because theyre installed high tech ventilation systems to remove cigarette smoke. But just how effective are those sysstems?

Two researchers, James Repace and Dr. Ken Johnson, say theyve studied these expensive systems and found them ineffective at removing dangerous secondhand smoke. In a new study, Repace and Johnson found that these high-tech systems were no match for secondhand smoke and may, in fact, perform worse than standard "dilution" ventilation.

The study looked at air quality before and after a smoking ban in a restaurant/bar in Toronto, Canada, and compared the level of smoking-related cancer-causing chemicals and toxic particles in the air of non-smoking and smoking sections of two dining/drinking establishments in Mesa, Arizona.

"This study proves that dining in a restaurant or bars non-smoking section does not significantly reduce exposure to smoke-related pollutants, even in those few establishments that use these sophisticated, expensive ventilation systems," said Repace, who is Adjunct Professor at Tufts University School of Medicine and a secondhand smoke consultant.

"Smoking bans remain the only viable option that protects the health of non-smokers and hospitality workers," he said.

Since a hospitality industry-funded study was being heavily promoted to ventilation engineers as proving the efficacy of these systems, Repace and Johnson decided to publish their contrary results in a ventilation society journal devoted to discussion of practical solutions to indoor air quality problems.

The study is the lead technical article in the Fall 2006 issue of IAQ Applications, a peer-screened journal of the American Society of Heating, Refrigerating and Air-Conditioning Engineers.

Breast Cancer Risk

Johnson, Research Scientist/Epidemiologist with the Centre for Chronic Disease Prevention and Control, the Public Health Agency of Canada, is one of the world's leading experts in breast cancer from secondhand smoke.

His work provided the foundation for a report by the State of California, which found that secondhand smoke nearly doubles breast cancer risk. Repace, whose groundbreaking research on secondhand smoke led to the Environmental Protection Agencys policy interest in indoor air pollution, recently published a widely quoted study demonstrating that the level of cancer-causing particles in smoke-filled bars is much higher than it is on diesel truck-choked highways.

Displacement ventilation has been proposed as a way to allow non-smokers and smokers to co-exist, because it does not re-circulate smoky bar air and theoretically removes pollutants from restaurant non-smoking sections.

It has been promoted by hospitality industry associations and tobacco interests as part of a strategy designed to thwart the adoption of smoking bans. This study is one of the first to look at whether these systems provide sufficient protection.

False Sense of Security

"These exotic ventilation systems give restaurant and bar owners a false sense of security," says Repace. "They feel they are protecting their employees and customers, even though deadly respirable toxins from tobacco smoke remain in the air."

Repace and Johnson measured particulate polycyclic aromatic hydrocarbons (PPAHs), common carcinogenic byproducts of tobacco smoke, and respirable suspended particles (RSPs), disease-causing substances found in tobacco smoke in the three restaurant/bars smoking and non-smoking sections.

In the Toronto establishment (Black Dog Pub), measurements were taken before and after its owner banned smoking; the Black Dog abandoned reliance on its expensive non-recirculating system after operating it for years and voluntarily went smoke-free.

The Internal Revenue Service's move to send delinquent tax cases to private companies for debt collection is raising eyebrows.

Critics have charged that the move would invite abuse of taxpayers by shady companies, as well as risk personal information being misused, and cost the government more than it would to collect taxes itself.

Now a report by the Government Accountability Office (GAO) indicates that though the IRS has made progress in administering the private debt collection (PDC) program, it has failed to adequately document the costs of the program and setting targets for its success.

"[If the IRS] waits too long, [it] risks not having critical information in a timely and cost-effective manner in order to answer important questions about whether the PDC program is producing desired results at acceptable costs and whether the program should be expanded," the report said.

The GAO conducted the analysis for the Senate Finance Committee, which has been critical of the PDC program. Ranking minority member Max Baucus (D-MT) said that "Tax collection is an inherent government function and the IRS ought to take care of it in-house."

Among the GAO's findings:

• The IRS has begun, but has not completed, accurately estimating the costs of the PDC program. It claimed that historical data for the program costs was not "historically tracked," requiring the agency to assemble the data from available sources.

• The IRS will implement procedures to protect taxpayers' rights when dealing with private debt collectors, including training for collectors, extensive background investigations, and "taxpayer surveys" to get feedback on the performances of private debt collectors.

• The IRS did not have specific information on how they would use feedback from the privatization program to decide whether or not to expand it.

The IRS has estimated that the first phase of the program may net the government between $55 million and $92 million, with costs for the program around $62 million.

However, the GAO found that the IRS' figures did not account for the fees the agencies will be collecting on the taxes they bring in, as much as 24 percent from the taxes themselves.

With the fee costs figured in, the revenue figure drops to a low end of $44.1 million, well below the program's cost threshold.

IRS Commissioner Mark Everson said that he agreed with many of the findings of the GAO report, and that the IRS would be implementing many of their recommendations. Everson had recently admitted in Congressional testimony that it was less costly for IRS employees to pursue tax collection than it was to outsource it to private agencies.

The IRS has already come under fire for wasting millions in failed software upgrades that culminated in the agency dispensing $318 million in refunds for fake tax returns.

The concerns about information sharing also reminded privacy advocates of the IRS' plan to loosen the guidelines for tax preparers to sell their customers' information to third parties. Critics say that the plans could lead to increased cases of identity theft, fraud, and predatory lending.

Treasury employees and oversight organizations have accused the IRS of playing political favorites by reducing staff in areas that cover high-stakes cases such as business and corporate audits, while rewarding politically-connected companies with the contracts for the private debt collection program.