by Justice William W. Bedsworth
I watch a lot of TV. I would like to tell you it’s all PBS and 60 Minutes and C-Span, but, in the immortal words of Richard Nixon, “That would be wrong.”
Like most old trees, my roots run deep, and they run to the wells of my blue-collar upbringing. That includes TV. While I’ve tried to polish it up, the core of my being still responds to Balsam Range, peanut butter sandwiches, and seven-card stud. When I talk about Nijinski, I’m talking about a racehorse, not a dancer. So yes, I watch a lot of things that include commercials.
But I don’t like commercials. And my privileged 21st-century life doesn’t require me to watch them. I DVR everything I want to see and then fast-forward through the commercials as I watch. I like to think of it as my personal struggle to bring down prices by making advertising obsolete.1
But as I was fast-forwarding through much of the Cal game the other night,2 I saw a commercial that caught my eye. It was a drug commercial. At my age, you sometimes make exceptions for drug commercials on the theory they may include something that will help you against one of your own 157 age-related maladies.
I will not use the true name of the drug involved.3 Let’s call it Gazorninplat.4 Here’s the part of the commercial I found noteworthy:
Gazorninplat works with your immune system. Gazorninplat can cause your immune system to attack normal organs and tissues in your body and affect how they work. This may happen any time during or after treatment has ended and may become serious and lead to death. See your doctor right away if you experience new or worsening cough, chest pains, shortness of breath, diarrhea, severe stomach pain or tenderness, severe nausea or vomiting, extreme fatigue, constipation, excessive thirst or urine, swollen ankles, loss of appetite, rash, itching, headache, confusion, hallucinations, muscular or joint pain or flushing as this may keep these problems from becoming more serious. THESE ARE NOT ALL THE SIDE EFFECTS OF GAZORNINPLAT.”
Honest. Word for word. I’m not good enough to make that up. I was so knocked out by it that I took out my phone and recorded the ad.5
In fact, there was more scary stuff that I haven’t set out. There were a few conditions they suggested might contraindicate even considering Gazorninplat, and then they thanked all the brave souls who had participated in clinical trials of the drug and presumably developed one or more of those side effects—which I thought was frightening, but pretty cool. Credit where credit is due, and all that.
You’ve seen these kinds of ads, right? Essentially eleven seconds of good stuff about the drug followed by a Slim Whitman-length infomercial about all the reasons you might conclude the cure is worse than the disease.
The list of side effects starts during the World Series and ends shortly before the Super Bowl. Near as I can determine, there are FDA-approved drugs whose side effects include traffic jams, crop failure, and bad tables at restaurants.
Why do drug companies do this? Because we make them.
Lawyers and legislators and judges and juries have convinced them they have to do it to keep from getting sued. “Yes, Mrs. Palsgraf, we know you took Gazorninplat for three years, after which your son declared he wanted to be a congressman, but that’s not really our fault. Besides, we warned you the drug could cause dizziness and hallucinations, and we never said you were the only member of the family who would suffer that side effect.”
Our litigious society forces drug manufacturers to try to foreclose lawsuits by getting us to assume risks. If they told you the drug would cause avalanches in the Rockies and destroy coral reefs in Australia, your complaint that it caused you to attack the neighbor’s parakeet with a garden rake sounds almost nugatory . . . and well within the realm of foreseeable results.
This is jujitsu advertising, and it’s pretty impressive, but it seems a sad commentary on modern American litigiousness. Or it would if it were just American litigiousness that inspired advertising like this.
A reader in Atlanta sent me the packaging from a child’s Viking helmet manufactured in Italy and sold in England. Here’s what it said, “Avvertenze: Questo giocattolo non fornisce protezione.” It also said, “Warnhinweise, Dieses Spielzeug bietet keinen Schutz.” And “Figyelmeztetesek, Ez a jatek nem nyujt vedelmet.” And “Varnigar, Denna leksak ger inte nagot skydd.”
My guess is that all of those, and the seven other legends that appeared with them were the equivalent of the English inclusion in the list: “Warning: This toy does not provide protection.” Twelve different ways of saying, “This is a plastic kid’s toy; if you go into battle against the Visigoths with only this helmet protecting your numb little skull, we will not be responsible.”
In Europe, they need the same warnings we do, and they need them in at least a dozen different languages. Since the plastic Viking helmet was going to be sold in Finland and Denmark and Slovenia and Estonia and Upper Trashkanistan, they had to hire a linguist to design the packaging.
And the linguist warns us not only to stay out of battles if we’re wearing the helmet, but also—this time in sixteen languages—“WARNING! Read and keep. Small parts might be swallowed or inhaled. Choking hazard.”
I have no idea what small parts they’re talking about. It’s a helmet with horns sticking out above each ear—you know, like the Vikings probably never wore until they got to Minnesota.
Nothing detaches from the helmet, and even if it did, nothing this side of a goat could ingest it. And it would have to be a world championship Clydesdale of a goat, because these are big pieces. No four-year-old could get any part of this into his mouth, much less swallow it.6
And that’s just for the toy itself. The real danger is multilingually explained in another warning. POZOR! TENTO SACEK NENI HRACKA! Nenechavejte sacek v bliziosti kojencu a malych deti! Nenatahujte si sacek na hiavuol! Nebezpeci uduseni.
So help me, if I saw that—with all the capital letters and exclamation points and supernumerary “js”—on something I was thinking of buying for a child, I would throw it on the floor and run screaming from the store.
I’m told that for all its histrionic weirdness, that is an attempt at cautioning Czechs. It warns them to keep the plastic bag away from any tiny Czech Vikings because of suffocation danger.
For some reason, they only tell us about the danger of the plastic bag in ten languages. I’m convinced there’s a doctoral thesis in marketing to be written explaining why you warn about bad body armor in twelve languages, swallowing helmet horns in sixteen, and plastic bag asphyxia in ten.7
So this is what we’ve come to. It doesn’t matter whether you’re manufacturing significant chemical miracles in Nebraska or cheesy kids’ toys in Naples, you can’t do it without a lawyer by your side.
I think that reflects good intentions. And I’m all for warning people of danger. The old saying is that “Forewarned is forearmed.”
But the last time I was forearmed was in high school, and it left me flat on my back on the twenty-five-yard line, dizzy and hallucinating like I’d overdosed on Gazorninplat. I’m getting that feeling again.
William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at email@example.com. And look for his new book, Lawyers, Gubs, and Monkeys, through Amazon and Vandeplas Publishing.