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The Supreme Court Takes on Zicam - What About Vaccines?

Zicam By Kent Heckenlively, Esq.

Do you ever find yourself wondering when the media will look at vaccines with the same skepticism as it does other medications?

After watching Anderson Cooper of CNN go after Dr. Andrew Wakefield with more anger than if he'd been questioning a dictator who'd killed millions, I'm not really holding my breath for the media to do their job.

I'm a little more hopeful for the Supreme Court.  In a January 13, 2011 editorial for The New York Times entitled "The Anosmia Case" HERE the Times told of a very interesting case before the Supreme Court in which the justices displayed an admirable amount of intellectual curiousity and just plain common sense.

It's one of those cases in which you get to the end and ask yourself, are the lawyers really making that argument?  Here are the facts. 

Zicam, a homeopathic cold remedy was marketed by a company called Matrixx Initiatives.  The company received complaints from 23 users of the product claiming they'd lost their sense of smell, a condition known as anosmia.  "Good Morning America" aired a piece questioning the safety of Zicam and as a result the price of Matrixx's stock fell 24 percent.  The shareholders sued, saying the company should have warned investors about the problems and potential lawsuits.

According to The New York Times, "The company complained that it didn't have to, arguing that the complaints had no scientific basis, that any loss of smell should be blamed on illness and that the number of complaints was not statistically significant."  Sounds similar to how the pharmaceutical companies respond to complaints regarding vaccine injury, doesn't it?  If it's not "proven" we don't have to tell you the company claimed.

But the justices weren't putting up with any of this nonsense.  Justice Stephen Breyer dismissed the "statistical" claim and said in language unusually direct for a Supreme Court Justice, "Oh no, it can't be.  I'm sorry.  I don't mean to take a position, yet.  But, look, Albert Einstein had the theory of relativity without any empirical evidence, o.k.?"

And in reply to the claim that the information was not statistically significant and thus not "meaningful", a group of law professors in a brief which supported the shareholders wrote, "requiring that high a standard to shield investors from unproven allegations would treat then as 'nitwits' unable to make their own judgments about good and bad information."  And in this case the information was accurate.  In 2009 the Food and Drug Administration warned consumers not to use the product and the product was withdrawn.

I have to note that the behavior of the justices mirrored that of the Bruesewitz v. Wyeth case which is of great interest to the autism community.  We are currently waiting for a decision which may come this month, or may not arrive until June.

In that case the court was asked to rule on the scope of the National Childhood Vaccine Injury Act of 1986 and the section which read, "No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable (italics mine) even though the vaccine was properly prepared and was accompanied by proper directions and warnings." (42 U.S.C. section 300aa-22(b)(1).  The Act has been interpreted to mean that essentially all vaccine-injury claims had to go to a special vaccine court.  Their argument is that this went beyond the scope of the act and that they should be able to bring claims for design-defect in state courts, as is done for all other consumer products.

The court didn't seem to be putting up with any of the weasely answers given by the attorneys for Wyeth Laboratories or the government.  At one point in the proceedings the counsel for Wyeth Laboratories was avoiding Justice Sotomayor's question of what incentive a manufacturer had to take an unsafe vaccine off the market if there was no threat of state action.  When the lawyer attempted to move onto another point, Justice Roberts stepped in and said, "Before you get to that, I think your answer to Justice Sotomayor's question is: Nothing; the manufacturers have no reason to take the vaccine off the market until the FDA tells them to."

My favorite exchange was when Justice Breyer questioned the attorney who was acting on behalf of the United States government which was supporting Wyeth Laboratories.  "Now I can't say that the word unavoidable-it's pretty hard to say that that word unavoidable means avoidable; and I am in fact-like to look at the purposes of this statute, that if something says "day" I can't say it means "night".  And so-so what-what is it about this word that allows us to say that it's avoidable?"

Will the Supreme Court rule that vaccines should be treated just like any other consumer product?  I'm not sure, but from their remarks at oral arguments it doesn't seem like they're putting the pharmaceutical companies on any pedestal.  I have to note that even though The New York Times editorial gets it right on Zicam, when the first vaccine-autism case was being heard the vaccine court they had an editorial claimining the case should have never even been heard.  It's probably the first time in history a major newspaper has pre-judged an environmental tort case without a single witness taking the stand.

It's good to know The New York Times will publish top secret information from our military, but draws the line at questioning vaccine safety.

I'm not holding out much hope for the media, but a little flame burns in my lawyer's heart that the Supreme Court will get it right.

Kent Heckenlively is Contributing Editor to Age of Autism


Claire B

I agree 100% with LISA! I want Zicam nasal gel! People are stupid when they sue for their mistakes. that product worked for me and I even had my son using it from the time he was 5 yrs. old. worked like a charm with NOOOOOO bad side effects! I had several bottles that I had purchased before the recall at Costco. I am now almost out though! DAMN . I hope they will bring it back!


I have used Zicam for several years. I am a nurse who comes in contact with lots of rhinoviruses and adenoviruses. In 2000, (I can't find the original article) an important discovery was made at the cellular level regarding viruses. Viruses are negatively charged ions and zincum gluconate (ingredient in Zicam) carries a positive charge. When you get a sore throat or nasal congestion, the virus has found a home in the naso/oropharnyx. Directly applying the zinc to the virus stops the virus from replicating and progressing to a full blown "cold". I personally have stopped at least 40-50 sore throats from turning into a cold. When the virus found its way into my nose, I used to use Zicam gel but it was taken off the market. My theory is: Big pharma was losing money from an over the counter product which is, as far as I'm concerned, a "cure" for the common cold virus. No colds, no sales of drugs to treat symptoms. So give it some bad press (loss of smell) yikes! Off the market and a ruined reputation.
Follow the money.
Huge increase in the vaccine schedule, huge increase in autism, ADHD, asthma, auto-immune diseases, etc., huge sales in drugs to treat these diseases.
Follow the money.
Why would vaccines be found unsafe? Just ask Dr. Proffit, er Offit.

michael framson

Excellent article Kent! So very much appreciate your writing, your civility, and your expression of hope.

Derrick Billings

True homeopathy is safe for all for the simple reason that they contain no statistically significant active ingredients.

Zicam actually did have medically significant amounts of zinc which could plausibly have had side effects


Anything that the gov't has to do in secrecy isn't a good thing.

Also found this online

Love this page - Vaccine Side Effects and Adverse Events

Smallpox (Vaccinia) Vaccine Side Effects
Moderate to Severe Problems
• Serious eye infection, or loss of vision, due to spread of vaccine virus to the eye.
• Rash on entire body (as many as 1 per 4,000).
• Severe rash on people with eczema (as many as 1 per 26,000).
• Encephalitis (severe brain reaction), which can lead to permanent brain damage (as many as 1 per 83,000).
• Severe infection beginning at the vaccination site (as many as 1 per 667,000, mostly in people with weakened immune systems).
• Death (1-2 per million, mostly in people with weakened immune systems).
For every million people vaccinated for smallpox, between 14 and 52 could have a life-threatening reaction to smallpox vaccine.

Heck its already in writing ... and this is just one vaccine ....


but just like vaccines, Zicam may be safe for some users but not for others. We simply want to be honestly warned about potential problems.


I loved the Zicam Cold Remedy nasal gel. I've used it for nearly 10 years with no problems. It works. I wish that I would have stockpiled more of it before the FDA determined that the public just wasn't smart enough to assess the risks and benefits of its use. If there was a black market source for it, I'd buy more from them. I would like to have seen just the labeling strengthened with warnings of the cases of anosmia and put the decision of whether or not to use the product in the hands of the consumer. It is my belief that if those cases of anosmia were investigated, it would be discovered that the product was used incorrectly. It is not supposed to be sniffed up the nose. It is only to be applied in the very end of the nose.

Deb in IL

I never thought of this product as "homeopathy".

Not that I take wikipedia as gospel, but it mentions it's "unapproved" homeopathy.

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