“You are not a horse.”
That was the Food and Drug Administration’s (FDA) official message pushed on its social media channels, intended to discredit the use of ivermectin to treat COVID-19. In cartoons and memes, using taxpayer money, the FDA demeaned ivermectin as a “horse dewormer” not fit for human use.
But recently, the FDA received a sharp rebuke from the U.S. Fifth Circuit Court, which ruled that the “FDA is not a physician. It has authority to inform, announce, and apprise — but not to endorse, denounce, or advise.” It went on to say that the “FDA can inform, but it has identified no authority allowing it to recommend.”
For the three doctors who brought a claim against the FDA for militating against ivermectin, the ruling provides vindication — but it cannot bring back those patients who died or suffered needlessly with other drugs, like the infamous remdesivir, while being barred from taking ivermectin, which may have helped them.
As the COVID-19 outbreak unfolded, treatments pushed by pharmaceutical companies and government agencies seemed not to be working, so some doctors turned to ivermectin as a plausible treatment element. It has been used globally for many years to battle things like malaria, and its use in Third World countries probably goes a long way to explain the low incidence of COVID-19-related mortality there compared to Western nations.
“FDA is not a physician. It has authority to inform, announce, and apprise — but not to endorse, denounce, or advise.”
– US. Fifth Circuit Court
However, many doctors in the U.S. were shocked when the prescriptions they wrote for ivermectin were turned down by pharmacies, hospitals, and large medical operations, which were supported in part by federal dollars. Health insurance plans also blocked ivermectin prescriptions for COVID-19, all largely on the strength of the FDA’s comical and well-publicized cartoon meme campaign. The most famous one read, “You are not a horse, so don’t act like one.” That was a direct insult to doctors and potential patients who were open to trying this well-known drug to treat COVID-19. It also had an incalculably chilling effect on the acceptance of ivermectin as a treatment.
Three well-respected medical doctors who had prescribed the human version of ivermectin to thousands of patients united to say that the FDA’s messaging interfered with their own individual medical practices. The doctors sued the FDA, the Department of Health and Human Services, and also two governmental employees in their official capacities. The doctors argued that the FDA’s “horse” message and similar public statements in social media posts violated the FDA’s enabling act and the Administrative Procedure Act.
The decision of the U.S. Court of Appeals Fifth Circuit (filed September 1, 2023, and available to read under Case: 22-40802 Document: 00516882138) stated that the FDA was wrong to create a misleading advertising campaign. These agencies were found to have overreached their authority. As a result, doctors have lost licenses, practices and reputations and been stripped of positions in hospitals. One of the real harms of the federal ad campaign was that the public perceived that these agencies had conducted fact-finding research to determine if using ivermectin in COVID-19 patients was safe and/or effective. The agencies had not.
“We are very pleased with this development and extremely proud of our colleagues for taking a stand against a government health agency that is clearly overstepping its authority,” said Pierre Kory, M.D., M.P.A., president and chief medical officer of the FLCCC (Front Line COVID-19 Critical Care Alliance). “The FDA’s campaign against ivermectin continues to be used as an excuse by hospitals to deny access to a lifesaving treatment and weaponized by medical boards to threaten the licenses of doctors who stray from the mainstream to prescribe a drug that has been proven in controlled trials to safely treat hundreds of thousands of patients around the world.”
It is sad but not cynical to say that the FDA’s war on ivermectin was probably motivated by its close partnership with large pharmaceutical companies — which make no money on ivermectin but do from other treatments. The American medical industry’s lack of integrity has been exposed, and it is certainly a sad state of affairs when money is superior to potentially lifesaving medical care.
After this ruling, the doctors will undoubtedly face a decision in the U.S. Supreme Court soon. For now, as a lawyer of more than 50 years, having defended people in the criminal courts, I have never seen a more egregious example of how a governmental agency attempted to get away with hiring an advertising agency to demean a product that could save lives. I didn’t think these federal agencies could stoop so low.
Retired attorney George Nicoletti was admitted to the California State Bar and Federal Bar for the Central District of California in 1969. He served as Constitutional Law Professor at Glendale College of Law for 6 years and practiced law in Thousand Oaks starting in 1972. He was admitted to the U.S. District Court in Tucson, Arizona, in 1994.
