Goop and the Legal Pitfalls of Women’s Wellness

Goop, Gwyneth Paltrow’s e-commerce empire, recently settled a consumer protection lawsuit to the tune of $145,000 in civil penalties. The suit was brought in September of 2018 by ten prosecutors from the California Food, Drug, and Medical Device (FDMD) Task Force in response to what they characterized as false medical advertising claims.  Prosecutors focused on two particular Goop wellness products: a (now-infamous) vaginal egg said to “balance hormones, regulate menstrual cycles, prevent uterine prolapse, and increase bladder control” and a blend of essential oils marketed to prevent depression.  Some commentators viewed this settlement as a victory, including legal scholar and professor Timothy Caulfield (author of the book, Is Gwyneth Paltrow Wrong About Everything?).  On NPR the week of the settlement, Caulfield crowed, “I am thrilled… it [sends] a powerful message.”  But just what powerful message does this legal “victory” send?

It is easy to laugh at the idea of a vaginally-insertable jade or rose quartz egg serving as a female cure-all, or to ridicule both the marketers and consumers of a product entitled “Inner Judge Flower Essence Blend” that claims to cure depression when added to bathwater.  This kind of health-centered consumer product has become more common as wellness has taken over the millennial marketplace for food, fitness, clothing, travel destinations, and more.  Like many trends read as “feminine,” wellness is often the target of mockery.  It was described in a recent New Yorker article as “a kind of prosperity gospel for the witchy hipster who wants to make a big career move, have perfect skin, and treat her Tinder date to Hot Sex Milk made from ho shou wu.”  Much of Goop’s success has been built by capitalizing on women’s desire to feel better––to be cleansed, healed, and restored.   However, the crystals, sage, and mushroom teas on offer at the Goop store become less of a laughing matter when one considers the alternatives offered to women by hegemonic Western medicine.

It is now recognized in medical and scientific literature that there are substantive gender gaps in medical knowledge.  Prior to World War II, the U.S. Food and Drug Administration (FDA) excluded women from human clinical investigations in order to protect them from the rigors of clinical testing.  This exclusion continued throughout most of the 20th century as generation after generation of researchers found it too costly and complex to expand studies across genders and proceeded instead on the “implicit assumption that outcomes in men would be adequate proxies for outcomes in women, despite the…physiologic, anatomic, and metabolic differences between the genders.”  Compounded by the fact that research on “women’s conditions” (like cervical cancer, pregnancy, and autoimmune disorders) is chronically underfunded, this means that “modern medicine is predicated on a startling lack of information about…women.”

The disparity continues in medical schools, where women’s illnesses are taught differently, if at all.  In a report to the UN, one expert noted that “until very recently…teaching medical students how to do competent, sensitive and painless breast and internal examinations for women has not been an integral part” of the curriculum.  “This explains why women expect and experience pain during what should be routine internal examinations.”  This approach to pain has downstream effects in day-to-day medical practice.  Pain medication is prescribed at lower rates for women and, when it is given, it is prescribed later and at lower doses than it is for men.  The impact is even greater for women of color, low-income women, women for whom English is not a first language, women in the military, and women who are considered too beautiful to be sick––to say nothing of the gaps in care faced by trans and nonbinary individuals. The disbelief of women’s pain ruins so deep that, in one study, women were seven times more likely than men to be discharged from the hospital while in the middle of a heart attack.

In addition to misreading women’s pain, traditional medicine is sometimes a cause of women’s pain. Gynecology alone reveals a startling number of abuses. A recent study found that one in five women who underwent medically directed hysterectomies did not require the procedure.  For well over a century, medical professionals have worked jointly with legislatures and with the U.S. Supreme Court to carry out the forced sterilization of women.  As recently as 2010, doctors in California were performing bilateral tubal ligations on female prison inmates without consent.

When women do give birth, mounting evidence shows that they are often subject to sexual assault and various forms of coercion during the process, a phenomenon known as obstetric violence.  Some believe that this is a contributing factor to America’s maternal death rate (the highest in the developed world).  Recent cases like that of USA Gymnastics doctor Larry Nassar and University of Southern California physician George Tyndall have put a spotlight on the problem of medical provider sexual abuse. Last month, a woman who had been in a clinic in a vegetative state for fourteen years unexpectedly gave birth, leading to the arrest of one of her healthcare providers after DNA tests showed he was the baby’s father. Given that women risk ridicule, misdiagnosis, and even assault when going to the doctor, is it any surprise that some might prefer to stay home with a rose quartz egg, soak in a bathtub that smells like lavender, and hope for the best?

When things do go wrong at the doctor’s office, women find little recourse in the courtroom.  In abuse cases, there is a pattern of medical boards covering up offenses, coupled with an unwillingness on the part of judges and juries to punish medical professionals for their misconduct.  In August of 2018, a case made headlines in which a Texas doctor raped a sedated patient and unplugged the woman’s nurses’ call button before committing the assault.  At trial, the doctor’s attorney stated, “[H]ere we have this Latina woman with her fake boobs that came on to that little nerdy middle-aged guy and he lost his mind.”  The doctor was convicted but received no prison sentence.

In malpractice cases, plaintiffs come up against a well-documented conspiracy of silence, a tradition in which physicians refuse to testify against one another, making it challenging to obtain the competent medical testimony required for conviction.  Physician defendants have proven willing to revive the specter of hysteria in order to discredit female victims.  In one notable case, a woman died from sepsis after a surgical pad was left inside of her abdomen following a hysterectomy. The defense introduced evidence of the victim’s chronic depression and put forth a theory that she had stolen the surgical pad, taken sleeping pills to suppress her gag reflex, and eaten the 19”x19” pad in a failed suicide attempt.  This argument prevailed at trial and at an intermediate appellate court, even though medical testimony revealed that it was anatomically impossible.  Against this backdrop, it seems incongruous, paradoxical, and perhaps absurd to prosecute companies like Goop.  Is Gwyneth, be she fraudster or messiah, the villain that looms largest in this tableau?

While professing a deep concern for women’s health and safety, legislative reform efforts have often been too little, too late.  Federal and state legislatures tend to assume that women’s health needs will be met by legislation targeting child and infant welfare.  In some cases, state legislatures have even partnered with medical interest groups to make it more difficult for female victims to recover in medical malpractice suits.

Meanwhile, on the regulatory front, the FDA conspicuously fails to regulate cosmetics, household cleaning supplies, menstrual products, dietary supplements, sex toys, and personal lubricants.  Many female entrepreneurs have tried to fill the gap created by the legal system.  There has been a recent renaissance of women-owned menstrual product and sexual wellness companies striving to meet the needs of underinformed, under-protected female consumers by engaging in transparent and ethical design, manufacturing, and distribution processes.  Following this targeted action against Goop, one is left to wonder what the future has in store for these female-fronted businesses.

The concerns expressed by the California FDMD prosecutors are not entirely unfounded. Though the particular products at issue did not cause any adverse customer reactions, it is true that a rejection of reliable scientific and medical data can have real public consequences, as evidenced by the recent class action brought against EOS Lip Balm.  In an extreme form, ad campaigns by alternative health companies can contribute to trends like the anti-vaccination movement, which has sparked health crises including the Washington measles outbreak.  Viewed broadly, the California enforcement action against Goop and the surrounding publicity could be seen as a renewed commitment to truth in advertising, as a pushback against fake news and pseudoscience, and even as a kind of commitment to women’s health and safety.  But absent concerted efforts to address the health needs of women on the part of doctors, researchers, drug manufacturers, public health officials, and others in the traditional pantheon of power in Western medicine, and without sweeping legal and regulatory reform, this type of prosecution seems futile and arbitrary.  It reveals not a fear of snake oil, but rather a deep unease that the peddlers of snake oil may no longer be exclusively sales men.

Fiona Collins is a first year student at Harvard Law School and an Online Content Editor for the Harvard Journal of Law & Gender.