Current Events in May 2008

One called it "a slap in the face."

A U.S. District Court Judge in Camden, New Jersey yesterday gave preliminary approval to a $24 million settlement in a class action lawsuit that stems from the largest pet food recall in U.S. history.

Last March, Menu Foods of Canada recalled 60 millions of containers of dog and cat food that were tainted with melamine, a chemical used to make plastics.

Thousands of dogs and cats across North America suffered kidney disease after eating the contaminated food. Many died.

The Food and Drug Administration (FDA) traced the source of that contamination to wheat gluten imported from China.

The $24 million settlement is in addition to the $8 million in claims some companies involved in the pet food litigation have already paid bringing the total figure to $32 million.

A hearing is set for October 14, 2008, on final approval of the settlement, which would resolve more than 100 class action lawsuits filed in U.S. and Canadian courts in the wake of the massive pet food recall.

Lawyers, company react

"We think this (settlement) is a win for consumers," said Sherrie Savett, one of the plaintiffs' attorneys in the case. "With this settlement, consumers will get as much or more than if they litigated the cases individually. The claims process allows people to recover as much as 100 percent of all their economic damages.

She added: "What we did get out of this settlement for consumers is the possibility of complete recovery of all economic damages -- even for lost carpets and time -- in addition to their veterinary bills. Even in cases where people do not have documentation of their damages, the settlement allows in some cases up to $900 for each person."

Menu Foods, which manufactures dog and cat food under nearly 100 brand names, applauded the settlement.

"Menu Foods is pleased with this negotiated settlement," Paul Henderson, the company's chief economic officer, said in a written statement. "If finally approved, the agreement will provide restitution to the pet owners affected by the 2007 pet food recalls.

"We feel that the pet owners, along with Menu and other pet food producers, were victims of a terrible fraud committed by a company in China," Henderson said.

Pet owners divided

Some pet owners, however, told ConsumerAffairs.com the settlement is not a victory for consumers.

Don Earl, whose beloved cat Chuckles died after eating Menu Foods' Pet Pride food, called the settlement "a slap in the face."

"Extrapolating from the best information available, over a quarter million pets were killed by the poisoned pet food epidemic," he said. "Take a third off the top for the attorneys, and divide by the number of pet owners harmed, they each will get $64."

An Arizona pet owner -- whose 13-year-old Sheltie suddenly died after eating some of the tainted pet food -- agreed.

"I feel that the $24 million is less than a slap on the wrist," said Jerry L. of Goodyear, Arizona. "It's a sad state of affairs and just goes to prove that until pet owners who really care about their pets push their government for stronger laws, these companies will continue to hold our pets at little or no regard.

"The only thing I can say is that I'm saddened and disappointed that our pets are held at so little value," she added. "Sandy Boy's ashes remain in my home and his picture remains proudly displayed around our home."

Pet owner Carol V., of Rhode Island, whose two cats became gravely ill last year after eating Menu Foods' Special Kitty food, echoed those sentiments.

"Twenty-four million dollars does not seem a lot before legal expenses," she said. "And if there are tens of thousands of affected pets (which I believe may be a low estimate), it seems unlikely that pet owners will get back all of their expenses.

"This amount also seems insufficient to me as we are talking about multi-billion dollar companies participating in this settlement."

A monetary settlement, Carol said, can never erase the pain and suffering her cats -- and her family -- experienced because of the tainted food.

One of her cats, Jessica, had to be euthanized last December because of the health problems she suffered after eating the contaminated food.

"There is no amount of money that will ever make this right in my home," Carol said. "Whether it is one penny or the close to three thousand dollars for my vet -- nothing will erase the memory of my cats struggling with trying to stand on their own, hanging over the water bowl, and hanging onto life for months as Smudge (her cat) did and now she struggles with chronic kidney damage and all because I fed them Association Of American Feed Control Officials (AAFCO) approved cat food."

Canadian author Ann Martin, who has researched the pet food industry for years, is pleased dog and cat owners will receive some compensation.

"Money, no matter how much, will never replace the pets they have lost due to the contaminated food," she said.

Lesson learned?

Martin and others said pet food makers and the government must now -- in the wake of the massive recall and settlement -- ensure the food that consumers feed their pets is safe. But they are not convinced that's happened.

"I really don't think the food on the shelves now is any safer than what we saw prior to the massive recall," Martin said. "How many of these pet food companies are testing for contamination in the raw materials they are purchasing? It is my understanding that some are now testing for melamine in the grains, but this is just one toxin that might be in the raw material. Are they testing the vitamin/mineral premixes, many which are coming from China or other countries with questionable practices?"

The settlement requires pet food makers to continue testing ingredients imported from China. That, however, doesn't make Martin feel any safer about feeding her animals commercial pet food.

"I'll continue to feed my pets a homemade diet," she said. "At least I know what they are eating, which is more than you can say with many of the pet foods on the market."

Carol is also leery about feeding her pets commercial food.

The system to protect dogs and cats from experiencing another pet food nightmare, she said, is still broken.

"I am not sure what makes me more mad -- that it took a courtroom full of lawyers to come to this decision (settlement), or the fact that I see no changes to our current food supply system to prevent this from happening again. The illness and deaths of beloved four-legged family members should have been a huge wake-up call that the system is broken."

Pet owners like Don Earl said some good has come from the massive recall.

"Many pet owners (including myself) have switched from the recycled garbage promoted as pet food to homemade," he said. "Their pets will live much longer and healthier lives."

Other consumers said the recall has made pet owners more aware of what's in the food their feed their dogs and cats.

And thanks to this settlement, that food should be safer than before the recall, said attorney Sherrie Savett.

"Pet food manufacturers know they will get hit with lawsuits that are meaningful (if their food isn't safe), she said. "I think that would cause pet food manufacturers to be much more careful."

What to do

Meanwhile, pet owners affected by the tainted food can still file claims for their losses.

Those consumers should not contact Menu Foods, the company said. Instead, they should contact the claims administration for the settlement at the following:

In re Pet Food Products Liability Litigation, Claims Administrator
c/o Heffler, Radetich & Saitta LLP,
P.O. Box 890,
Philadelphia, PA 19105-0890

1-800-392-7785

www.petfoodsettlement.com

Blizzard of litigation

Pet owners in 19 states -- and Ontario -- filed dozens of lawsuits against Menu Foods in the weeks that followed the March 16, 2007, nationwide recall of dog and cat food. Those cases were consolidated in a federal court in Camden, New Jersey.

The lawsuits alleged unfair and deceptive trade practices, negligence in failing to provide adequate quality control and breach of implied and express warranties.

Some consumers also claimed they suffered emotional trauma after their pets became sick or died.

Pet owners also sought compensation for their veterinary bills.

Companies named in the lawsuits -- besides Menu Foods -- included Del Monte Foods Inc. of San Francisco; Nestle of Stamford, Conn.; Procter & Gamble in Cincinnati; Xuzhou Anying Biologic Technology Development Co. Ltd. in Pixian, China; and Suzhou Textile Import and Export Co. in Jiangsu, China.

Those defendants -- and Menu Foods' product liability insurance company -- will cover the costs of the settlement.

Menu Foods estimated the recall has cost the company $53.8 million.

Cause of death

Veterinarians now blame the dogs' and cats' deaths on the combination of two chemicals FDA officials found in the tainted pet food: melamine and cyanuric acid, which is used to chlorinate pools.

Neither chemical is approved in pet food.

Veterinarians said those two chemicals can combine and form crystals in the dogs' and cats' bodies. And those crystals can impair the animals' kidney function.

"Either one of those chemicals alone wouldn't cause these (deaths)," Dr. Barbara Powers, immediate past president of the American Association of Veterinary Laboratory Diagnosticians (AAVLD) and director of Colorado State University's Veterinary Diagnostic Laboratory, told ConsumerAffairs.com. "It has to be the combination of the two. "

More about pets ...

Another dietary supplement has become a recall target at the U.S. Food and Drug Administration. The FDA has requested that SEI Pharmaceuticals, of Miami, Florida, recall all Xiadafil VIP Tabs.

The agency says the tablets contain a potentially harmful, undeclared ingredient that may dangerously affect a person's blood pressure and can cause other life-threatening side effects.

These lots have an expiration date of September 2009. Xiadafil VIP Tabs are marketed as a dietary supplement for sexual enhancement and able to treat erectile dysfunction, or ED. The product is sold in 8 tablet bottles, Lot # 6K029, or blister cards of two tablets, Lot # 6K029-SEI.

The formal request follows an action by the state of Florida to prevent the further distribution of this product into consumer channels. FDA is advising consumers not to buy or use this product. The agency may take further regulatory action to protect consumers from this illegal product.

Although labeled as a dietary supplement and touted as "all-natural," the FDA says Xiadafil VIP Tabs are an illegally marketed drug that contains a potentially harmful undeclared ingredient. FDA chemical analysis revealed that Xiadafil VIP Tabs contains hydroxyhomosildenafil, which is an analog of sildenafil, the active ingredient in Viagra, an FDA-approved prescription drug for ED.

The agency says this undeclared ingredient may interact with nitrates found in some prescription drugs, such as nitroglycerin, and can lower blood pressure to life-threatening levels. Consumers with diabetes, high blood pressure, high cholesterol, or heart disease often take nitrates. ED is a common problem in men with these medical conditions.

"Because these products are labeled as 'all natural dietary supplements,' consumers may assume that they are harmless and pose no health risk," said Janet Woodcock, M.D., director of the FDA's Center for Drug Evaluation and Research. "But an unsuspecting consumer with underlying medical issues may take these products without knowing that they can cause serious side effects and interact in dangerous ways with drugs that a consumer is already taking."

The FDA has not approved Xiadafil VIP Tabs for ED or any other drug use, and the safety and effectiveness of this product is unknown. The product is promoted and sold over the Internet, was given away as free samples at trade shows, and is sold in health food stores nationwide. The product may be packaged in bottles of eight tablets or blister cards of two tablets.

On May 13, 2008, Florida officials issued a "stop sale" action at SEI's distribution facility in Miami. This action required the firm to hold, intact, violative Xiadafil VIP Tabs found on-hand at the facility. The state of Florida's action to control the supply of the product, coupled with the FDA's formal request o recall this product from the marketplace, will further reduce the likelihood that this potentially dangerous product is used by unsuspecting consumers.

Alternative products like Xiadafil VIP Tabs are often sought out because they are marketed as "all natural" or as not containing the active ingredients in approved, prescribed ED drugs.

Because the manufacturing source of the active ingredients in many of these alternative products is unknown, consumers should also be aware that the safety, efficacy, and purity of these ingredients have not been verified by the FDA, the agency warned.

The FDA advises consumers who have used this product to discontinue use immediately and consult their health care professional if they have experienced any adverse events.

A Texas appeals court has overturned the August 2005 verdict of a state court jury in Brazoria County, which had found Merck & Co. liable for damages in the Vioxx product liability case Ernst v. Merck. It was the first Vioxx case to go to trial after the company voluntarily removed the medicine from the market.

Merck also said that a New Jersey appellate division has overturned the punitive damage and consumer fraud awards in the 2006 verdict in a two-plaintiff Vioxx trial involving Thomas Cona and John McDarby.

"We are gratified that the Texas appeals court correctly found that Vioxx did not cause Mr. Ernst's death and reversed the previous decision for the plaintiff in the first Vioxx case to go to trial. In addition, the New Jersey court correctly reversed the awards of punitive damage and consumer fraud. Today's decisions overturn almost $40 million of damages and attorneys fees previously awarded to plaintiffs at trial," said Bruce Kuhlik, executive vice president and general counsel of Merck & Co., Inc.

In the Texas appeal, Chief Justice Adele Hedges, writing for a unanimous panel, said the court found no evidence that Ernst suffered a thrombotic cardiovascular event -- a heart attack -- triggered by a blood clot. As a result, the court said the plaintiff failed to show that ingestion of Vioxx caused her husband's death.

The jury's original verdict on Aug. 19, 2005 included $24,450,000 in compensatory damages and $229,000,000 in punitive damages for a total of $253,425,000 against Merck. On June 23, 2006, based on relevant Texas law which limits the amount of punitive damages, the punitive damage verdict of $229,000,000 was reduced to $1,650,000.

In the Cona and McDarby cases, the New Jersey Appellate Division, an intermediate appellate court, overturned the punitive damage award as well as the consumer fraud award, and let stand the compensatory damages for personal injury to McDarby. In reversing the consumer fraud verdict, the court also rejected the attorneys fees granted to the plaintiffs' attorneys.

Merck said that as a result, the court overturned more than $13 million in damages and attorneys fees. In the trial, the company argued that both of the heart attacks were caused, not by Vioxx, but by the pre-existing medical conditions of the two men. While the jury found that Vioxx did not cause Cona's heart attack, it found in favor of Mr. McDarby, awarding him both compensatory and punitive damages.

In November 2007 Merck, after vowing to contest each of the thousands of product liability lawsuits against it, agreed to settle claims over the withdrawn painkiller for $4.85 billion.

Merck withdrew Vioxx from the market in September 2004 after tests indicated the highly popular arthritis drug increased the risk of heart attack and stroke in patients taking it. More than 27,000 consumers or their family members filed suit against Merck as a result.

A. If you have coronary bypass surgery, you could suffer from what some in the heathcare professions call pump head.

During traditional surgery, a patient is put on a heart-lung bypass pump to oxygenate and circulate blood. This machine may create clots that could harm the brain. In addition, a surgeon handling the aortathe main heart arterycan free bits of accumulated plaque and they can block blood vessels in the brain.

Some patients report a memory loss. Or, they say they are confused. Some feel that they just arent as mentally sharp as they had been. These side effects seem to be more common among people who are older, drink too much, or suffer from high blood pressure or lung disease.

But theres a lot of disagreement among experts over the entire subject of the mental effects of bypass surgery.

One study indicated that only half of those undergoing bypass surgery developed memory or thinking problems within days after the operation, and that these problems continued for five years. However, other researchers found that mental deficiencies are common after bypass surgery, but that most people recuperate in 3 to 12 weeks.

The pump-head phenomenon led to the development of beating-heart bypass. Its done without using a heart-lung machine. About one in five bypass operations is now done with a beating heart.

In a bypass, an incision is made down the center of the chest to expose the heart. The surgeon takes a section of healthy blood vessel, often from inside the chest wall or from the lower leg, and attaches the ends above and below the blocked artery so that blood flow is diverted around the narrowed portion of the diseased artery. This eases angina, the chest pain that comes when there is an insufficient supply of oxygenated blood.

Because the heart beats constantly, it needs a steady flow of fuel. If a fuel shortage is serious, you have a heart attack and muscle begins to die. Heart attack is known officially as myocardial infarction.

The surgery usually takes between three and six hours. On average, surgeons repair two to four coronary arteries. After surgery, patients spend a day or two in the intensive care unit. Recovery takes 6 to 12 weeks.

About half a million Americans a year have coronary bypass surgery. For every 100 Americans who undergo it, 1 to 2 die within a month and 2 to 3 have a stroke. The long- term results of the surgery are excellent.

Among the techniques in development is minimally invasive heart surgery which uses smaller incisions.

The action names 16 companies and individuals, including the schemes principal architect, David G. Vavro, and his three firms: Horizon Travel, Travel Club International and VIP Travel Incentives Inc. All 16 defendants are charged with conspiring to hide assets from authorities and failing to deliver legitimate travel discounts or free trips to dues-paying travel club members.

According to the Attorney Generals investigators, Vavro created multiple travel clubs shortly after the collapse of a similar firm, Sun Country Travel, where he served as a director. Relying on direct mail and high-pressure sales calls, Vavros companies used false advertising to convince potential customers to attend sales presentations.

Although seminar attendees were promised free vacations from Horizon Travel, the defendants actually required a $100 deposit to secure purchasers travel plans. Customers who attempted to schedule their free trip were consistently told that the requested travel dates were unavailable. Because the free trips frequently never materialized before customers vouchers expired, many lost their $100 deposits.

According to investigators, Horizon Travel customers were pressured to join Travel Club International for between $2,000 and $6,000. Travel Club customers were told they and their families would receive steep, members-only travel discounts.

However, many members quickly realized that their travel rates were available to the general public.

The Attorney Generals investigation also found that travel club publications offering special offers and discount vacation plans often arrived in mailboxes after the deals had expired. The states enforcement action charged Vavro and the defendants with marketing memberships that were of little or no value.

When consumer complaints against Vavros companies began to increase in early 2006, investigators discovered that the defendants began transferring financial assets between various travel corporations, which were also named in the Attorney Generals enforcement action.

Entities that received financial transfers from Vavros companies were actually sham corporations designed to obscure financial transactions, hide assets from authorities, and shield Vavro from state enforcement efforts, according to court documents filed by the state.

The Attorney General charged the defendants with multiple Texas Deceptive Trade Practices Act violations, which carry penalties of up to $20,000 per infraction.

Because the defendant businesses failed to obtain certificates of authority from the Texas Secretary of State, Vavro faces up to $5,000 in penalties every month that each business failed to comply with the Texas Business Corporation Act. The Attorney General also charged Vavro with violating the Contest and Gift Giveaway Act by unlawfully conducting travel voucher program. Finally, the state also charged the defendant with violating the Texas No-Call law.

More Scam Alerts ...

Research finds that tomatoes, green peppers, carrots and spring onions can all offer protection against a wide variety of cancers as well as protecting against sunburn and prematurely aging skin.

Many fruits and vegetables are rich in lycopene or carotenoids, and both can provide some important health benefits.

Carotenoids are the dark yellow and red micronutrients that give many fruits and vegetables their color. They protect against inflammation, skin aging, photosensitivity and some skin cancers. The carotenoids in tomatoes, peppers and pomegranates are widely distributed in the epidermal and dermal layers of the skin after they're digested.

In the skin they help to absorb the light, act as antioxidants and have an anti-inflammatory response to sunburn. They act by increasing the circulation of the blood to the skin and thus its nutrition. The better skin nutrition the less its scaliness and roughness, and more improved its thickness and hydration.

The effect of nutrition on skin health was among the topics at last week's First International Congress on Nutrition and Cancer, held in Turkey.

The study of nutrition is expanding from strictly dietary concerns to a broader focus on food scientists, as researchers find evidence that diets common in the Far East and Mediterranean countries have important health benefits over those common in the West.

Beyond describing the effects, scientists are increasingly able to explain the biochemical mechanism and demonstrate how the micronutrients in the diet can interfere with the body's cellular pathways to help to prevent cancer.

Before discussing the complex cellular pathways that determine how diet is involved in between one and two thirds of cancers, Professor Walter Willett of Harvard outlined the changes to lifestyle that help to reduce their incidence. He advised that everyone should exercise more, lose weight and increase the intake of fruit and vegetables, The Times of London reported.

Willett suggested that this would be especially useful in reducing cancers of the head and neck, such as those of the mouth, throat and esophagus as well as those of the gastrointestinal tract and, above all, prostate, breast and ovaries.

Willett recommends eating apples, as fresh as possible, every day and tomatoes -- the star food of the conference -- as well as onions and garlic. Pomegranate juice also gets his highest rating.

To keep the lower gastrointestinal tract healthy, Willett recommended a selection of fruit and vegetables to maintain adequate levels of beta carotene, vitamin C and vitamin E, as well as folic acid.

Lycopene, a powerful antioxidant, received universal approval from researchers speaking at the conference.

When lycopene is extracted from tomatoes, rather than from other substances, it contains two other naturally occurring carotenoids. These provide the necessary synergistic reaction that has an influence on a large number of other cancers, including, importantly, prostate and breast cancer.

By the way, lycopene is more available in cooked tomatoes than in raw ones, so nutritionists say we shouldn't be afraid to put an extra dab of red sauce on the pasta. Tomato juice is also beneficial.

May 29, 2008    
QuinCrafts is recalling about 70,000 sets of Makit & Bakit children's jewelry. The clasps on some of the jewelry contains high levels of lead. Lead is toxic if ingested by young children and can cause adverse health effects.

The recall includes QuinCrafts products containing children's jewelry. Only items with the following item numbers printed on the back of the packaging are included in the recall:

The children's jewelry was sold in a variety of sets that contained necklace, bracelet and earring or ring combinations.

The items, made in China, were sold at AC Moore, CVS, LTD Commodities, Marshall's/TJ Maxx, Michaels Corp. and other toy and independent craft supply stores nationwide from August 2007 through March 2008 for about $2.

Consumers should immediately take the recalled jewelry away from young children and contact QuinCrafts for a replacement jewelry set.

For additional information, contact QuinCrafts at (800) 366-4660 between 9 a.m. and 5 p.m. ET, Monday through Friday or visit the firm's Web site at www.quincrafts.com/recall

The recall is being conducted in cooperation with the U.S. Consumer Product Safety Commission (CPSC).

May 28, 2008
Federal standards for things like product safety and public welfare are supposed to make enforcement more manageable and consistent being fair to industry while protecting consumers. But increasingly, states are complaining that federal standards just aren't strong enough.

Just last week, the California Air Resources Board said it research had demonstrated that long-term exposure to fine-particle pollution, another common form of air pollution, poses a greater health threat than previously estimated.

In the latest conflict, 14 states and the District of Columbia have filed suit against the U.S. Environmental Protection Agency, claiming the agency's revised, ground-level ozone are weak and inadequate to protect the public health and welfare.

In a lawsuit filed with the U.S. Court of Appeals for the District of Columbia, the states contend that EPA violated the federal Clean Air Act and disregarded advice from its own scientific advisory committee in setting its revised National Ambient Air Quality Standards for ozone.

"It is simply unacceptable for EPA to ignore its own science advisory committee and set the new ozone standard at a level that will make breathing more difficult for children, seniors, people who work outdoors and those who already suffer from chronic lung disease," said Illinois Attorney General Lisa Madigan. "It is absolutely vital that the EPA follow the science on this issue and adopt a standard that protects public health."

A main ingredient of "smog," ground-level ozone is an air pollutant that is harmful to breathe and damages trees, crops, animals, wildlife and visibility. Under the Clean Air Act, the EPA is required to establish primary and secondary standards for air pollutants such as ozone, and to review and update those standards every five years.

The "primary" standard defines the upper limit of ozone concentrations that can be in the atmosphere before causing public health problems such as asthma attacks and chronic lung disease. The "secondary" standard defines the upper limit of ozone concentrations that can be in the atmosphere before damaging public welfare by diminishing crop productivity and harming plants, animals, wildlife and climate.

Ozone-related adverse health effects include changes in lung function, increased respiratory symptoms and aggravation of existing lung and heart disease.

Children and the elderly are particularly vulnerable to the effects of ozone, as are active individuals such as joggers. Ozone also has harmful effects on vegetation including increased susceptibility to disease, which can kill trees and diminish crops.

"The scientific evidence is clear and well-established: reducing ozone levels will not only help protect our environment and preserve our natural resources, it will help save lives. It is time for the federal government to comply with the Clean Air Act and work with the states to implement ground-level ozone standards that actually protect public health and welfare," said New Jersey Department of Environmental Protection Commissioner Lisa P. Jackson, who also chairs the Ozone Transport Commission, an organization of 12 northeastern and mid-Atlantic states, plus the District of Columbia.

The participating states or state agencies include California, Connecticut, Delaware, District of Columbia, Illinois, Massachusetts, Maryland, Maine, New Hampshire, New Mexico, New Jersey, New York, Oregon, the Pennsylvania Department of Environmental Protection and Rhode Island.

The coalition is asking the Court to order EPA to adopt new standards that comply with the Clean Air Act by protecting public health and welfare.

California findings

According to the California report, 14,000 to 24,000 premature deaths a year are estimated to be associated with exposures to PM2.5, a mix of microscopic particles less than 2.5 microns in size. A majority of these deaths occur in highly populated areas around the state, including the South Coast, San Joaquin Valley and San Francisco Bay air basins.

"Particle pollution is a silent killer," said ARB Chairman Mary D. Nichols. "We must work even harder to cut these life-shortening emissions by further addressing pollution sources head-on."

Particulate matter (PM) is a complex blend of substances ranging from dry solid fragments, solid-core fragments with liquid coatings, and small droplets of liquid. These particles vary in shape, size and chemical composition, and may include metals, soot, soil and dust.

At the request of the board in 2006, ARB researchers carefully reviewed all scientific studies on the subject and consulted with health scientists. While exposures to particulate matter have long been known as a serious health threat, new information suggests that the pollutant is even more toxic than previously thought.

Hospitalizations, emergency room visits and doctor visits for respiratory illnesses or heart disease have been associated with exposure to particulate matter. Other studies suggest that exposure may influence asthma symptoms and acute and chronic bronchitis.

Children, the elderly and people with pre-existing chronic disease are most at risk of experiencing adverse health effects. Even small increases in exposures may increase health risks.

Major contributors include trucks, passenger cars, off-road equipment, electric power generation and industrial processes, residential wood burning, and forest and agricultural burning. All combustion processes generally produce fine particulate matter.

West Virginia residents recently found a mailing from a group called Citizens Against Lawsuit Abuse in their mailboxes, prompting a brisk response from the state's attorney general, Darrell McGraw, who says the mailing "crossed the line."

McGraw takes issue with the mailing's assertion that he represented three plaintiffs in a lawsuit and is keeping the money for his own use. McGraw says the lawsuit was brought on behalf of all the citizens of West Virginia who have been affected by the addictive and abusive effects of OxyContin.

The settlement proceeds were distributed according to the Court order, and a majority of the money has been used to fund day report centers across the State. Every dollar spent on a day report center saves the county in which it is located $7 in regional jail costs, McGraw says.

And just who, or what, is Citizens Against Lawsuit Abuse?

CALA, according to incorporation papers filed with the West Virginia Secretary of State's office, is a non-profit business group organized for a common business purpose. Registered as a 501(c)(6) corporation under the Internal Revenue Code, CALA is not required by law to reveal its funders.

"If consistent with the experience in other states, CALA's main source of funding is in fact business interests which the Attorney General's office is required to regulate," McGraw's office said in the Consumer Alert. "CALA's misrepresentation of what it is should call into question its true motives and purpose."

CALA has local chapters in a number of states. According to SourceWatch, an online project of the Center for Media and Democracy, the CALA chapters are "grassroots" groups created by industries and businesses to give the appearance of a groundswell of public desire to alter the legal system to make it harder to bring lawsuits for injuries and illnesses caused by hazardous products.

SourceWatch contends that Philip Morris has been a primary backer of the group.

More Scam Alerts ...

May 28, 2008
Children exposed to secondhand smoke are admitted to the hospital more often than those who aren't, according to new research published in the online edition of Tobacco Control.

These children are at greater risk of a whole range of infectious illnesses, such as meningococcal disease, and not just respiratory illness, the results showed. Exposure to smoke in the first few months of life did the most harm, especially if they had a low birth weight or had been born prematurely.

The researchers assessed the relationship between second hand smoke exposure and first admission to hospital for any infectious illness for 7,402 children born in Hong Kong in April and May 1997. The children were followed until they were eight.

Children who lived in the household of someone who smoked within close proximity during their first few months of life were the most at risk of being admitted to hospital with one in three admitted by the age of 12 months.

The earlier the exposure to smoke the more profound the effect with exposure to second hand smoke during the first six months of life increasing the likelihood of being admitted to hospital for an infectious disease during the eight years by almost 45 per cent.

Infants not in good health to start with appear to be at the greatest risk of hospitalization, as a result of their secondhand smoke exposure. Those with a low birth weight were 75 percent more likely to be admitted to hospital with an infectious disease during the eight years and those who were premature being twice as likely. The authors suggest that second hand smoke might affect the immune as well as the respiratory system of young children.

"An excess risk of severe morbidity from both respiratory and other infections for all infants exposed to second hand smoke suggests that such exposure, as well as acting via direct contact with the respiratory tract, may also affect the immune system," the report said.

The study also said that premature infants and those with a low birth rate might be more at risk because their respiratory and immune systems were less well developed.

A nationwide class action lawsuit alleges the National Collegiate Athletics Association (NCAA) and Ticketmaster operate an illegal lottery in which thousands of consumers pay nonrefundable fees for the very slim opportunity to get tickets to the popular Men's and Women's basketball tournaments.

ConsumerAffairs.com was the first to report on the issue April 4 after a reader told us he paid $72 in nonrefundable service charges that were not returned to him even though his application was not drawn for the 2009 NCAA men's basketball tournament.

Aside from the service charge, the NCAA also makes consumers pay the full price for the tickets and holds onto the cash for up to nine months, presumably making profit off the interest.

The ticket applications for the early rounds for the 2009 men's basketball tournament were due March 1 and required the consumer to pay about $200 plus a $9 service charge for each ticket. Consumers could apply for as many as eight tickets.

The bastards kept our money for nine months and then had the gall to keep our $72! the consumer wrote in an e-mail. Given the sheer number of applicants for tickets versus the number of available seats, they have to be making a killing on this.

The consumer wished to remain anonymous for fear of being blacklisted from future NCAA events.

Final Four and Championship tickets for both the women's and men's 2009 tournament were purchased directly from the NCAA's website where consumers completed an online application that again enters a competitive lottery.

Consumers can submit up to 10 applications, two tickets each, for those games, but are charged a nonrefundable $6 service charge for each entry. The tickets cost as much as $170 each.

For these last two rounds, the NCAA sits on the cash for five months before informing consumers whether they are one of the lucky few with a ticket. The application does not specify when a refund, minus the service charge, will be made.

Early-round applications were submitted to the arenas where the games will be played, rather than to the NCAA. The arenas received a small cut from the service charge, but most of it went to the NCAA, said an official at the Greensboro Coliseum in Greensboro, N.C., host to six games of the first two rounds of the 2009 men's tournament. The official asked to remain anonymous because he was not authorized to talk about the matter.

The suit also seeks damages for a much smaller number of consumers who entered ticket lotteries for the NCAA's hockey tournament.

Tantamount to gambling

The suit alleges that these lotteries are illegal because they are tantamount to gambling, which only charities and the state can operate in California and Indiana, where Ticketmaster and the NCAA are headquartered, according to court documents.

In our last story, Gail Dent, NCAA spokeswoman failed on repeated promises to answer questions. Although she again promised and failed to call back for this story, NCAA spokesman Erik Christianson told ESPN.com the lottery is not illegal.

Our practice of dealing with excess demand for an event is standard in the industry, Christianson told the sports news Web site. We have a nonrefundable fee charged to both successful and unsuccessful applicants. Those who do not receive tickets are refunded the ticket price.

There is no credible suggestion that our public ticket sale can be considered gambling in any way, and we are comfortable with our approach. We believe this complaint is without merit.

Not standard

But consumer advocates and the plaintiff's lawyers said it is not an industry standard.

It's not the industry standard, said Leonard Aragon, one of the lawyers representing the class. It would be illegal even if it were, but it's not. They're just basically fleecing the people trying to get tickets to watch their favorite team.

Typically you throw your name in the hat and if it's drawn, then they charge you for the tickets, said Russ Haven, legislative counsel for the not-for-profit consumer advocacy organization, New York Public Interest Research Group.

You don't have to loan them money, he said.

The suit hopes to return money to many thousands of college sports fans who have paid in both service charges and disgorgement from loaning the NCAA what amounts to many millions every year, according to court documents.

Aragon estimated only about three percent of all applicants for the Men's tournament, which is the majority of the class, get tickets.

You can figure out a way to distribute excess demand without doing an illegal lottery, Aragon said. There's no reason to hold the money. It's all electronic. They could conduct the lottery right away and they could send out the notices right away. I don't know of any other system that works that way.

Ticketmaster's role

Ticketmaster's involvement is not entirely clear at the moment.

It's our understanding that Ticketmaster runs the actual application process, Aragon said. They have a very tight connection, whatever they're doing. It's one of the reasons we have a conspiracy claim in (the complaint) that they got together to conspire to engage in this scheme to defraud people.

Ticketmaster did not return an e-mail sent Friday requesting comment.

For years consumers and consumer advocates have complained about the NCAA's practice of giving the majority of tickets and all the good seats to corporate sponsors rather than fans.

I like to believe the NCAA stands for No Chance At Admission, Haven said.

Only 4,600 tickets were distributed through the lottery system for the 2008 Men's Final Four while the NCAA and Ticketmaster received an estimated 100,000 entries, according to court documents.

Many consumers cannot apply for this because he or she may not have enough disposable income to lose $306 for just one application for six months or more, Aragon said.

A lot of the people might be ticket brokers who can afford to have their money tied up for a long time for the reward of getting these tickets, of which there aren't a lot, Aragon said.

Disputed charge

The anonymous consumer wrote that he was able to get his $72 in service charges back from the NCAA by fighting through his credit card company. He said he will do the same thing this next year if his application is not selected.

It's always good to have your credit card company between you and your vendor, Haven said.

Consumers nationwide who paid money to enter the lottery are already class members, but can request more information or become more involved in the suit by e-mailing the law firm, Hagens Berman Sobol Shapiro, at info@hbsslaw.com, Aragon said.

More Scam Alerts ...

The school, which operated in 12 states and enrolled over 2,400 students, filed for Chapter 7 bankruptcy protection after closing its doors in February.

Aside from being earthbound with their education plans dashed, many students had bankrolled their training through loans from KeyBank USA N.A., based in Cleveland, Ohio. Since the school required full tuition for its 18-month program to be paid up front, many students borrowed over $50,000. Silver State helped students apply for private loans, providing access to sources such as KeyBank.

Heres the hitch: Ordinarily, students are protected by Federal Trade Commission (FTC) rules from being stuck with a loan for an institution that no longer exists.

Although the money was owed to the school, Silver State and KeyBank worked closely enough that KeyBank could, according to the students class action lawsuit filed in California, be considered a holder in due course of the financing contract.

The FTC Holder Rule protects consumers when their financing contracts are sold to another creditor. In this case, the rule preserves any legal claims or defenses the student had against the school and allows him to use those claims and defenses against the bank.

Federal law requires that consumer credit contracts contain the following language, in bold, 10-point (or larger) type:

Notice

Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor.

Not only did the students' contracts with KeyBank fail to contain this notice, but students allege that KeyBank deliberately incorporated in Ohio because state laws exempt Ohio-domiciled banks from that states consumer protection laws.

Looks like Silver States students were skinned not just once, but perhaps twice. And if a student refuses to pay, the lender can report negative information about him to a credit bureau, ruining that students credit score.

If Key Bank is truly a holder, students should be protected by the FTC rule despite Key Banks end run around that protection.

Ripe for abuse

Author Cathy Lessor Mansfield, writing in the Wake Forest Law Review, highlights a situation ripe for abuse.

When a student needs a loan, his college or vocational school chooses one or two lenders and frequently processes the loan for the student. If (or when) the school bows out of the picture, the financial institution goes after the student, even though the student is the actual victim.

Mansfield argues that the FTC definitely has power over such situations, because student loans qualify as the type of loan (purchase money loans possessing a finance charge) covered by the FTCs Holder Rule.

Unfortunately, the Silver State situation isnt unique. Schools, especially unlicensed vocational schools, have a habit of closing suddenly, leaving students holding the financial bag.

Aggressive lending

Complaints abound against aggressive lenders including Sallie Mae, the formerly government-affiliated lender that is now privately owned.

In one case involving Sallie Mae, Mark Powell of Alexandria, Virginia enrolled in a computer-training school called Ameritrain, which ran seven computer-training facilities in five states. The school awarded certificates at the end of training, aimed at students getting commercial software jobs.

Shortly before Powell finished his course, the school closed and filed for bankruptcy. Students were stunned to learn that Sallie Mae did not consider itself a creditor within the meaning of the FTC rules and planned to collect on the loans.

Powell and other students hired counsel in hopes of pursuing a class action. They found out two disturbing things:

1) promissory notes they signed forbade litigation in favor of mandatory arbitration and

2) Ameritrain wasnt the first unlicensed school Sallie Mae had done business with.

Congressional action

Congress tried to offer students protection by amending the Higher Education Act, giving students with guaranteed loans the same protections as those contained in the FTC holder rule and make sure lenders checked out the legitimacy of schools whose students borrowed money.

To make things more dodgy, private loans (regulated by state and federal consumer protection and banking laws rather than the HEA) have skyrocketed since the late 90s, now representing approx. 20 percent of student loans.

This situation illustrates the crux of the problem: the explosion of private lending, together with partnering of schools and private lenders, most often banks.

Private loans frequently have more restrictive terms than federal student loans and tend to be more expensive. And, contrary to what youd think, a bank loaning money to students at a substandard school doesnt necessarily put itself at risk. Many private loans are sold to investors, who are usually clueless about the defects lurking in the loan.

Federally-sponsored loan programs contain eligibility requirements for schools its students attend, to lessen the chance that a school is understaffed or doesn't meet state licensing requirements. No such vetting takes place among private lenders, and students sometimes find out about their school's inadequacies when the doors close for good.

More protection

While the Silver State students battle it out in California Superior Court, the Project on Student Debt, a project of the Institute for College Access & Success, suggests measures to protect students borrowing through private lenders (approx. 20% of all student loans.) Among them:

• Extend borrower protections and remedies in the FTCs Holder Rule to cover students at all types of colleges and universities (not just private for-profit schools as under current law,) and all types of student loans and loan holders.

• Require colleges to clearly distinguish private from federal loans in financial aid awards and other materials. Require lenders and colleges to tell prospective borrowers about federal loans before they sign for a private loan, and emphasize that private loans are not backed by the federal government and can cost more.

• Require rate quotes for private loans to include full APR and other items required by the Truth in Lending Act (TILA) and make sure borrowers have accurate quotes before they sign a promissory note.

• Require a minimum cooling-off period during which the borrower can cancel the loan with no prepayment penalty.

• Amend current federal bankruptcy law so that private student loans have to meet the same criteria as other forms of consumer debt to be exempted from discharge. Federal student loans come with some borrower protections for economic hardship, unemployment death or disability, whereas private loans do not. Shielding private loans from bankruptcy means that repayment demands can essentially extend forever.

For more information: projectonstudentdebt.org.

Joan E. Lisante is an attorney who writes frequently on consumer issues.

Internet portal Yahoo! has taken the unusual step of filing a lawsuit against a number of unnamed individuals and companies engaged in the fake lottery scam. The lawsuit was filed in the U.S. District Court for the Southern District of New York in New York City, under the Federal Trademark Act, the Federal CAN-SPAM Act, and related state laws.

The suit targets those who used "Yahoo! Lottery" as the name of their fake lottery. It says the defendants unlawfully sent e-mail messages to Internet users for the purpose of deceiving them into believing that they have won a lottery or prize offered by Yahoo!.

The complaint alleges that without permission or authorization, and with full knowledge and notice of Yahoo!'s trademark rights, the spammers willfully masqueraded as Yahoo!, and sent e-mails claiming that the recipient had won a lottery, prize or other award from Yahoo!.

"Yahoo! does not offer any such awards and has no affiliation or any connection with the spammers or their e-mail communications," the company said in a statement.

The fake lottery scam is a well-established hoax designed to trick unsuspecting e-mail users into revealing valuable personal data like passwords, credit card information, and social security numbers.

Commonly known as a "phishing" scam, in this confidence game, perpetrators typically use the stolen information to access recipients' bank accounts and credit cards, to apply for unauthorized credit cards or loans, or to fraudulently create documents bearing the victims' personal identification and then use or sell it in a wide variety of credit and identity scams. Some of the "winners" are also deceived into sending the defendants money for processing and mailing charges.

Though it has been around for years and has been widely reported, the fake lottery scam continues to rake in millions for scammers. The fake lottery scam topped ConsumerAffairs.com's Top 10 Scams of 2006.

"The unauthorized use of Yahoo!'s trademarks is misleading, fraudulent, and has actually confused, misled, and deceived the public. Yahoo! will vigorously enforce its intellectual property rights and will not tolerate lottery hoax emails," said Joe Siino, Senior Vice President, Yahoo! Global IP and Business Strategy.

"Yahoo! is 100 percent committed to protecting our users from fraudulent e-mail messages and this lawsuit sends a clear message to spammers," said John Kremer, Vice President, Yahoo! Mail. "We are going after individuals who have attempted to negatively impact the e-mail experience for consumers across the Internet. Through our continued litigation efforts, our top goal and priority is to further protect Yahoo! Mail users and the public from this type of fraudulent activity."

As any law school graduate will tell you, it is often difficult to successfully sue someone unless you know their identity. Yahoo said it is currently trying to learn the identity of the defendants, who often employ third-party email services or hijacked computers, to send out their spam.

More Scam Alerts ...

In the largest telemarketing fraud crackdown in history, authorities in the United States and Canada filed more than 180 criminal and civil actions against companies that allegedly used deceptive tactics to sell everything from extended car warranties to magazine subscriptions.

The legal action -- spearheaded by the Federal Trade Commission (FTC) under the code name "Operation Tele-PHONEY" -- targeted 13 companies that allegedly duped more than 500,000 consumers nationwide through deceptive telemarketing schemes.

Consumers lost more than $100 million in these companies' various schemes, the FTC said.

ConsumerAffairs.com has received scores of complaints about one of the telemarketing companies named in last week's crackdown -- Publishers Business Services, which operates out of an office in Henderson, Nevada.

That company allegedly used deceptive and intimidating tactics to sell magazine subscriptions, according to the FTC.

"These defendants allegedly disguise their sales pitch as a survey, at the end of which they offer 'free' or low-cost magazine subscriptions,'" the FTC said in a written statement. "They send a bill weeks later, stating that consumers agreed to pay several hundred dollars for the subscriptions"

Intimidation

The FTC added: "When consumers complain or attempt to cancel, the defendants tell them that they are obligated to pay the bill and may not cancel because they entered into a 'verbal contract' during the survey call and the defendants have already paid the magazine publishers for the subscriptions. The defendants then attempt to extort payment by harassing the consumers at work, threatening to initiate collection actions, or threatening to submit derogatory information about them to the major credit bureaus."

Those actions mirror the complaints we've heard from consumers about Publishers Business Services.

"This company called my daughter who is not mentally stable and only 19 years old," Luanne H. of Durango, Colorado, told ConsumerAffairs.com. "They called her at work and harassed her and got information from her. She said she never chose to order magazines. Now they are trying to say she owes $700 plus dollars. I called and explained to them and said no one wants the magazines and to stop sending them."

The company refused, saying Luanne had pay to cancel an order her daughter never placed.

"They wanted $100 minimum to stop sending them," Luanne said. "I said we do not want your magazines and we will not pay you anything."

That's when the company resorted to scare tactics to force her daughter to pay, Luanne said.

"They stated they will turn her in to a collections agency and the judge will decide. This place is a huge scam and should be put out of business for preying on young people. I am sure they try to target elderly people, too. "

John S. of Chadwicks, New York, said the telemarketing company also tried to force him to pay for magazines he didn't order.

"I was called at workI work at a lumber department with many customers and power equipment. I was unable to hear the call. The next thing I know, I receive bill for $720 of magazines.

"I have called these people three times for cancellation," John said. "Today I was told this is not possible. When I asked for the contact information for someone who could take care of it, the customer service rep hung up the phone on me."

ConsumerAffairs.com contacted Publishers Business Services, but the company did not return our call.

Unordered goods

The other companies sued by the FTC included telemarketers that allegedly sent unordered household goods to consumers to those that offered phony tax rebates or prescription drug plans.

In some cases, the callers allegedly deceived consumers through the use of:

• Fraudulent sweepstakes pitches;
• Offers of free gifts;
• Promises that for an advance fee, consumers would be "guaranteed" to receive loans or credit cards. Those, however, never materialized or were useless.

The FTC said some companies named in the lawsuits allegedly used consumers' bank account information to bill them without their authorization, harassed them to pay for unordered goods, and violated the rules of the Do Not Call (DNC) Registry.

Besides Publishers Business Services, the FTC took legal action against:

• Med Provisions This company, based in Montreal, Canada, allegedly called consumers in the United States and claimed it could help them save 30 to 50 percent on prescription drugs. The company claimed to operate an online pharmacy and offered a 30-day money-back "guarantee" on its "membership package," which costs $389. Some consumers were also told they would lose their Medicare benefits if they did not sign up for the package, according to the FTC. Many consumers who ordered the package either receive nothing from the company or a worthless card from an organization that supposedly could provide Canadian drugs to U.S. consumers. According to the FTC, all of the company's claims are false, and many consumers could not get a refund;

• Union Consumer Benefits This Montreal-based telemarketing company allegedly sold worthless medical discount packages to elderly consumers throughout the United States, according to the FTC. The company allegedly used deceptive tactics to persuade consumers to reveal their bank account information -- often pretending they were calling from the Social Security Administration, Medicare, or the consumers' bank. In some cases, the company offered "free" benefits or claimed to offer a medical discount plan that would save the consumers' money on medical care and prescriptions -- for a one-time fee. The company then debited $399 from the consumers' bank accounts and sent them a package containing a prescription discount card that does not work. The FTC also alleged the company violated the law by calling consumers whose telephone numbers were listed on the DNC Registry;

• Steven Breitling/ICS Financial Firm According to the FTC, this company first sent consumers a direct mailing from ICS Financial that "guaranteed" them a $2,000-$5,000 loan. The company's telemarketers then contacted consumers who returned the application forms and told them they had to first pay a $75 "consulting/collective" fee and sign a contract to get their loan. After paying the fee, many consumers never hear from the company again, the FTC alleged. Those who do hear from the company were referred to another lender. That lender's application stated they were not guaranteed for approval and also required them to pay an additional fee. Many consumers who completed the loan applications and paid the fee received a notice stating their loan was denied;

• American Financial Card, Inc. According to the FTC, this company ran an advance-fee telemarketing scheme. The FTC alleged this company defrauded thousands of consumers in the United States by falsely promising to deliver a credit card for an up-front payment of $200. The company claimed the cards carried a $2,000 credit limit, cash advances up to $1,000, and a fixed interest rate. After paying the fee, consumers did not receive the promised card. Instead, most received a card that could only be used to buy items from the company's catalog;

• Integrity Financial Enterprises This is another advance-fee scam, according to the FTC. The company allegedly offered consumers a general-purpose credit card with a credit limit between $2,500 and $7,500. Consumers, however, had to pay an up-front fee of $200 to $300. The company told consumers they would receive vouchers equal to the amount of the advance fee and those could be applied to future card balances. Some consumers received nothing from the company, according to the FTC. Others received a card they could only use to buy merchandise from the company's catalog or online store. The company told consumers who complained they would not receive a refund of the advance fee they paid;

• Financial Advisors & Associates The FTC alleged this company and its principals -- doing business as Freedom Financial and MyUnsecuredCreditCard.com -- deceptively told consumers they could provide them with a major credit card, like a Visa or MasterCard. Instead, the company gave consumers only limited-use, advance-fee catalog cards. After paying 10 percent of the promised "credit line" up-front, consumers learned the cards could only be used to buy merchandise from the company's catalog or Web site. The company routinely turned down consumers' requests for refunds of the up-front fees they paid, according to the FTC;

• Handicapped & Disabled Workshops, Inc. The FTC alleged this company targeted elderly consumers in telemarketing various household products at exorbitant prices. The company aggressively solicited these consumers, often calling several times a day, to convince them to buy, the FTC said. The telemarketers' calls seeking "support" or "donations," made many consumers believe their purchases would help the handicapped or disabled workers employed by the company. The FTC also alleged the company mailed consumers products they did not order and debited consumers' credit and debit cards -- without their authorization -- for products they did not order. The FTC also alleged the company violated the DNC Registry;

• Helping Hands of Hope In a similar scam targeting elderly consumers, the FTC alleged this company sold various household products and promised that proceeds from the sales would either help employ the disabled or go to a charitable cause. The FTC said the company harassed consumers who said they did not want to buy these productsand tried to force them to make a purchase. In some instances, the company sent consumers products they did not order. The FTC also said the company ignored the DNC Registry and consumers' request to not be called again;

• U.S. Magazine Services According to the FTC, this company allegedly misled consumers about the monthly charges for magazine subscriptions. While the actual price was sometimes disclosed in later calls--after billing information was provided--some consumers only learned what they were charged (or that they were charged at all) after checking their credit card bills or debit card account balances. Consumers who tried to cancel the subscriptions were told no cancellations were allowed;

• NHS Systems, Inc. According to the FCT, this company used false and misleading sales tactics to deceive consumers' into providing bank account information. The FTC said the company claimed to be affiliated with U.S. government agencies like the Social Security Administration, IRS, or Medicare. The company often promised grants, tax refunds, tax rebates, or health benefits. Consumers were charged $29.95, $299.95, or both, and later discovered they were enrolled in a "discount health care program" they never authorized;

• City West Advantage, Inc. d/b/a Unified Services According to the FTC, this company called consumers and told them they had won a $1,000 shopping spree or other free gifts. The FTC, however, said the company's real objective was to persuade consumers to provide their bank account information. The company's telemarketers told consumers they would be charged $1.95 for shipping and handling for their so-called free gifts. If the consumer was reluctant to provide their banking information, the telemarketers allegedly called back repeatedly and harassed the consumer -- even after they asked them to stop calling. Consumers who provided their banking information learned the company charged them approximately $149. In most instances, the "gift" consumers received was worthless--usually an "Internet shopping spree" certificate that could only be used on one Web site;

• Direct Connection Consulting, Inc./Suretouch LLP This company allegedly contacted consumers with promises of free gift cards, gas cards, or free resort vacations. In many cases, the company told consumers they were being called by major retailers and would be rewarded if they took a short survey. They company told other consumers they would receive free products if they listened to a telemarketing pitch and answered "yes" when prompted. The telemarketers often read their pitches so fast that consumers could not understand them or did not realize they had agreed to pay for products or services. Consumers who understood the pitches were told they would not be billed because they had not given the company any billing information. The company, however, had access to consumers' billing information and charged their credit cards or debited their bank accounts. Consumers who were charged did not receive the free goods or the services promised. The Kentucky Attorney General's office joined the FTC as co-plaintiff in this case.

The FTC said this telemarketing crackdown -- which included assistance from law enforcement agencies across the country and in Canada -- will save consumers approximately $30 million over the next year. "The sheer breadth of 'Operation Tele-PHONEY' is a testament to the ability of law enforcement agencies at all levels to work together effectively to help protect consumers both in the United States and abroad," FTC Chairman William E. Kovacic said. "I'd like to personally thank all of our partners in this sweep for helping to eradicate the scourge of telemarketing fraud."

What to do

The FTC said consumers can protect themselves from unscrupulous telemarketing schemes by asking callers the following questions:

• Who is calling and why? Telemarketers must tell you this is a sales call, the name of the seller, and what they are selling before they make their pitch, according to the FTC. If the caller refuses to give you this information, hang up;

• What's their hurry? Fast talkers who use high pressure tactics could be hiding something, the FTC warns. Take your time. Most legitimate businesses will give you time and written information about an offer before asking you to make a purchase;

• If it's free, why are you asking me for money? The FTC says consumers should question any charges they must pay to receive a prize or gift. Free is free. If you have to pay, it's not a prize or a gift;

• Why am I "confirming" my account information or giving it out at all? Some callers have your billing information before they call you, according to the FTC. They're trying to get you to say "okay" so they can claim you approved the charge. Or, they're trying to learn your account number. Don't give out this information unless you know who you are talking to and what you are buying;

• What time is it? The law states telemarketers can only call between 8 a.m. and 9 p.m, according to the FTC. Anyone calling earlier or later that those times is violating the law.

Can't the national DNC Registry prevent these telemarketing calls?

The FTC says putting your number on the Registry will stop most telemarketing calls but not all of them.

Consumers will still receive calls from companies they do business with, unless they specifically tell those companies not to call.

The FTC warns that any calls from unfamiliar businesses could be a sign of a scam.

Consumers can report telemarketing scams and violations of the DNC Registry to the FTC or by calling 1-877-FTC-HELP.

The proposed settlement -- triggered by last year's recall of 60 million containers of melamine-tainted dog and cat food -- was filed last Thursday in the U.S. District Court of New Jersey.

A hearing to approve the settlement is set for May 30.

The tainted pet food debacle started last March when Menu Foods of Canada recalled millions of containers of dog and cat food.

The company -- which manufacturers dog and cat food under nearly 100 brand names -- took that action after pets across the country that ate its food suffered kidney problems and became ill or died.

"The Settlement Agreement will create a Settlement Fund of $24 million that will allow a potential recovery of up to 100% of all economic damages related to the pet food recall that were incurred by pet owners and persons who purchased recalled pet food in the United States and in Canada, subject to several limitations," Menu Foods wrote in a press release.

Under the proposed settlement, pet owners can file claims for medical expenses and reimbursement of burial or cremation costs. Pet owners who do not have documentation for these expenses can receive up to $900 each.

According to The Kansas City Star, the settlement sets aside $250,000 for reimbursement of recalled products, $400,000 for pet owners who paid to have their dogs and cats screened for health problems, and the remainder will cover all other economic damages, including those related to the death or injury of a pet.

Jeniphr Breckenridge, one of the plaintiffs' attorneys in the case, told the newspaper she is pleased with the settlement. "But at the same time, we recognize that there is no legal settlement that can compensate pet owners for losing a pet," she said.

Menu Foods initially blamed the contamination on a chemical called Aminopterin, which is used as a rat poison and to treat cancer.

The Food and Drug Administration (FDA) later discovered an ingredient used to make the pet food -- wheat gluten imported from China -- was tainted with the chemical melamine.

Melamine is used to make plastics.

Under the proposed settlement, pet food makers must continue testing ingredients imported from China.

In December, veterinarians blamed the dogs' and cats' deaths on the combination of two chemicals FDA officials found in the tainted pet food: melamine and cyanuric acid, which is used to chlorinate pools.

Neither chemical is approved in pet food.

Veterinarians said those two chemicals can combine and form crystals in the dogs' and cats' bodies. And those crystals can impair the animals' kidney function.

"Either one of those chemicals alone wouldn't cause these (deaths)," Dr. Barbara Powers, immediate past president of the American Association of Veterinary Laboratory Diagnosticians (AAVLD) and director of Colorado State University's Veterinary Diagnostic Laboratory, told ConsumerAffairs.com. "It has to be the combination of the two.

"So it's not melamine alone."

Pet owners in 19 states -- and Ontario -- filed dozens of lawsuits against Menu Foods in the weeks that followed the March 16, 2007, nationwide recall of dog and cat food.

Those cases were consolidated in a federal court in Camden, New Jersey.

The lawsuits alleged unfair and deceptive trade practices, negligence in failing to provide adequate quality control and breach of implied and express warranties.

Some consumers also claimed they suffered emotional trauma after their pets became sick or died.

Pet owners sought compensation for their veterinary bills.

Companies named in the lawsuits -- besides Menu Foods -- included Del Monte Foods Inc. of San Francisco; Nestle of Stamford, Conn.; Procter & Gamble in Cincinnati; Xuzhou Anying Biologic Technology Development Co. Ltd. in Pixian, China; and Suzhou Textile Import and Export Co. in Jiangsu, China.

Those defendants -- and Menu Foods' product liability insurance company -- will cover the costs of the settlement.

Menu Foods estimated the recall cost the company $53.8 million.

More about pets ...

Breast cancer is second behind lung cancer as the leading cause of cancer death in women. The chance of developing invasive breast cancer at some time in a woman's life is about 1 in 8.

The female breast is composed primarily of milk-producing glands (lobules), ducts that connect the glands to the nipple, and soft tissue.

Breast cancer is a malignant tumor that has grown from breast cells. Nearly all breast cancers start in the ducts or lobules of the breast. The cancer can spread (metastasize) to other parts of the body, but it will continue to be defined as breast cancer.

Types of breast cancer

There are many forms of breast cancer.

Infiltrating ductal carcinoma (IDC) is the most common form. It starts in a duct, then breaks through the duct wall and invades the tissue of the breast. At this point, it can metastasize through the lymphatic vessels and the bloodstream. About 80% of invasive breast cancers are infiltrating ductal carcinomas.

Lymph plays a major role in breast cancer. It is a fluid that carries immune-system cells through lymphatic vessels. Lymph nodes are small collections of these cells in the vessels. Almost all lymphatic vessels in the breast connect to lymph nodes under the arm. Cancer cells that enter lymphatic vessels can spread and begin to grow in lymph nodes. This is why doctors check the lymph nodes to see if breast cancer has spread.

Ductal carcinoma in situ (DCIS) is the most common type of noninvasive breast cancer.

The term in situ means the cancer is confined to its original site. DCIS denotes that the cancer cells are inside the ducts but have not spread through the walls of the ducts into the surrounding breast tissue. About 20% of new breast cancer cases will be DCIS. Nearly all women diagnosed at this early stage of breast cancer can be cured.

Risk factors

There are many risk factors for breast cancer.

• The risk rises with age. About 77% of women with breast cancer are older than 50 when they are diagnosed.

• Breast cancer risk is higher among women whose close relatives have the disease.

• A woman with cancer in one breast is at high risk of developing a new cancer in either of her breasts.

• Women who started menstruating before age 12 or who went through menopause after age 55 have a slightly higher risk of breast cancer.

• Having multiple pregnancies and becoming pregnant at an early age reduces breast cancer risk.

• Long-term use of hormone replacement therapy (HRT) after menopause increases your risk of breast cancer.

• Drinking alcohol is linked to an increased risk of developing breast cancer.

• Obesity is a breast cancer risk, especially for women after menopause.

Evidence is growing that exercise reduces breast cancer risk.

Diagnosis

The most common breast cancer symptom is a lump. Other symptoms include swelling, skin irritation, nipple pain or retraction, and an unusual discharge.

Early diagnosis saves lives. The combination of a mammogram, a clinical breast exam and self-exams is recommended by healthcare experts to reduce breast-cancer deaths.

A mammogram is a breast x-ray. If mammography finds an abnormality, confirmation by biopsy is required. In a biopsy, a tissue sample is taken for analysis.

About 2/10 percent of mammograms lead to a cancer diagnosis. About 10 percent of women examined will need another mammogram. Only about 10 percent of those women will need a biopsy. Out of those biopsies, 80 percent will come back negative for cancer.

Women 40 and older should have an annual mammogram and breast exam by a healthcare professional. As long as a woman is in good health and would be a candidate for treatment, she should continue to get mammograms and exams.

Research has shown that self exams help find breast cancer. Self examination teaches women how their breasts feel normally and to notice changes.

Ultrasound and MRI are other diagnostic tools.

Ultrasound uses high-frequency sound waves to outline a part of the body. Breast ultrasound can focus upon something picked up by a mammogram.

Magnetic resonance imaging (MRI) use radio waves and strong magnets instead of x-rays. They can be used to examine cancers found by mammogram.

Treatment

Most women with breast cancer have some type of surgery. Surgeries include lumpectomy to remove only the breast lump and surrounding tissue, a mastectomy that removes part or all of the breast or can be more extensive to include lymph nodes and muscle tissue.

Radiation therapy is another form of treatment. It uses high-energy rays or particles that destroy cancer cells. This treatment may be used to destroy cancer cells that remain in the breast, chest wall, or underarm area after surgery.

Medicines are also used to treat breast cancer. Chemotherapy employs intravenous and oral drugs that can kill cancer cells in most parts of the body. The anti-estrogen drug tamoxifen has been used for more than 20 years to treat breast cancer.

Hormone replacement therapy (HRT) to treat menopause symptoms and its relationship to breast cancer has become a controversial issue. Unfortunately, many women experience menopausal symptoms after treatment for breast cancer.

In the past, doctors had offered HRT after breast-cancer treatment to women suffering from severe symptoms. However, recently, a study found that breast cancer survivors taking HRT were much more likely to develop a new or recurrent breast cancer than women who were not taking the drugs. This study discouraged doctors from recommending HRT to breast-cancer patients.

Phytoestrogens, estrogen-like substances, may be safer than the estrogens used in HRT. However, there is insufficient data on phytoestrogens to evaluate their safety for breast cancer survivors.

Male breast cancer

Breast cancer strikes most often when men are in their sixties.

Male breast cancer? Men do have breast cells that can become cancerous. The disease is uncommon in men. It represents only 1% of all breast cancers. Because of its rarity, many men arent aware it exists. And thats a problem.

For unknown reasons, the incidence of male breast cancer has been increasing. About 2,000 men in the U.S. are diagnosed with breast cancer annually.

Young boys and girls have a small amount of breast tissue made up of a few ducts. At puberty, female hormones in girls make breast ducts grow, milk glands form and fat increase. The male hormones in boys prevent further growth of breast tissue. Men's breast tissue contains ducts, but only a few if any lobules.

The most common symptom of male breast cancer is the same as it is for women a lump. Other signs include: skin dimpling, a new indentation of the nipple, redness or scaling of breast skin, a clear or bloody discharge from the nipple.

Risk factors

Some risk factors for male breast cancer are:

• Age. The average age for a man diagnosed with breast cancer is 67.

• Family. About 20 percent of men with breast cancer are related to someone with the disease.

• Genes. About 7 percent of breast cancers in men are inherited.

• Radiation. Theres a higher risk to men who underwent chest radiation treatments when they were younger.

• Klinefelter Syndrome. Men with this syndrome make lower levels of male hormones androgens and more female hormones. This can cause gynecomastia, benign breast enlargement. Men with this condition may be at greater risk of breast cancer. Many medicines used to treat ulcers, high blood pressure, and heart failure can cause gynecomastia, too.

• Estrogen. The risk is small for men who take estrogen the main female hormone. Estrogen drugs may be used to treat prostate cancer.

• Liver disease. This can increase your risk of gynecomastia and breast cancer.

• Obesity. Fat cells convert androgens into estrogen.

• Alcohol. Drinking alcohol raises the odds that a man will develop breast cancer. The risk increases with the amount of alcohol consumed.

If a man has a family history of the disease, he should consult a doctor about regular testing. Diagnostic tests for men include a clinical breast exam, mammograms, ultrasound, biopsy and, if indicated, a nipple discharge exam.

Breast cancer treatment for men is similar to that given to women. Some men may need only surgery. Others will need surgery and radiation, chemotherapy or hormone therapy.

There isnt much tissue to a man's breast, so removing the cancer usually means excising most of the tissue. The procedures that are used on women to save breast tissue arent practicable for men.

Most men with breast cancer require a modified radical mastectomy. In this procedure, a surgeon removes the entire breast and some underarm lymph nodes, but leaves chest muscles intact.

All Rights Reserved © 2008 by Fred Cicetti

May 23, 2008
California's smog and air pollution is legendary, and now a state agency warns it is also deadly. The California Air Resources Board has received research showing long-term exposure to fine-particle pollution pose a greater health threat than previously estimated.

According to the report, 14,000 to 24,000 premature deaths a year are estimated to be associated with exposures to PM2.5, a mix of microscopic particles less than 2.5 microns in size. A majority of these deaths occur in highly populated areas around the state, including the South Coast, San Joaquin Valley and San Francisco Bay air basins.

"Particle pollution is a silent killer," said ARB Chairman Mary D. Nichols. "We must work even harder to cut these life-shortening emissions by further addressing pollution sources head-on."

Particulate matter (PM) is a complex blend of substances ranging from dry solid fragments, solid-core fragments with liquid coatings, and small droplets of liquid. These particles vary in shape, size and chemical composition, and may include metals, soot, soil and dust.

At the request of the board in 2006, ARB researchers carefully reviewed all scientific studies on the subject and consulted with health scientists. While exposures to particulate matter have long been known as a serious health threat, new information suggests that the pollutant is even more toxic than previously thought.

Hospitalizations, emergency room visits and doctor visits for respiratory illnesses or heart disease have been associated with exposure to particulate matter. Other studies suggest that exposure may influence asthma symptoms and acute and chronic bronchitis.

Children, the elderly and people with pre-existing chronic disease are most at risk of experiencing adverse health effects. Even small increases in exposures may increase health risks.

Major contributors include trucks, passenger cars, off-road equipment, electric power generation and industrial processes, residential wood burning, and forest and agricultural burning. All combustion processes generally produce fine particulate matter.