Stanley's Snake Oil was mostly mineral oil. When used to treat aches and pains, it was probably harmless if useless. You can still buy mineral oil at your local pharmacy; it is approved by the FDA for use in food and is sold as a remedy for constipation and irritated skin.

About the time Stanley's elixir was found ineffective and removed from the market, Bayer's patent on aspirin expired, and authorities recommended it to relieve symptoms of those suffering from the 1918 Spanish flu outbreak. But the doses were well above what is considered safe today, and it is possible that aspirin overdose contributed to the unusual fatality rate of the pandemic.

In 1918, the US Surgeon General, the US Navy, and the Journal of the American Medical Association recommended use of aspirin just before the October death spike. If these recommendations were followed, and if pulmonary edema occurred in 3% of persons, a significant proportion of the deaths may be attributable to aspirin.

If someone were injured by snake oil today, they would have a number of recourses:

· Demand a refund.

· Leave negative reviews.

· Enlist journalists to cover the story; the press loves a health scare.

If these don't satisfy, there is the tried-and-true American approach of taking the quack to court for damages. Johnson & Johnson was recently ordered to pay $72 million in damages for selling talcum powder.

Businesses providing remedies have a strong incentive to make sure their products are safe.

Well, most businesses. Big Tobacco doesn't have to worry about any possible negative health effects of cigarettes, because they received perpetual immunity from liability in the 1998 Tobacco Master Settlement Agreement. Philip Morris et al. do have to send a bundle of money each year to the states to pay for tobacco-related health expenses and anti-smoking programs. Well, that was the idea anyway. Some states ran to the nearest payday loans storefront and sold off their claims to future payments as bonds. North Carolina took a different approach: "$42 million of the settlement funds actually went to tobacco farmers for modernization and marketing."

So if you sell harmless snake oil to satisfied customers, the government will shut you down. If you sell poison, they might be willing to cut you a deal.

we know what the drug market looked like pre-regulation

What does the drug market look like post-regulation?

In 1962, following the tragedy of birth defects caused by Thalidomide (which the FDA did not approve), rules were tightened to require proof-of-efficacy in new treatments. The benefit of the tougher rules is reduced risk that an ineffective drug will be widely used. The cost of tougher rules is that effective treatments are delayed while people suffer and die.

After the change, the time to approval increased from seven months to thirty in 1967, and the number of new drugs approved decreased.

Time to market is now measured in years, and is generally considerably slower than in Europe. A further irony is that, once a drug is approved for both safety and efficacy, it can be prescribed "off label" if doctors believe it will be effective for other purposes. This is a common practice and demonstrates that, in practice, we trust doctors to make decisions about treatments.

One such treatment has been used since 1908 to treat tooth decay, and has been approved in Japan for decades. The FDA recently approved it as a tooth desensitizer for adults 21 and older, enabling dentists to use it off label to treat children with cavities.

The stated purpose of the FDA is to protect the public health. But the incentives are different.

"No FDA official has ever been pubicly criticized for refusing to allow the marketing of a drug. Many, however, have paid the price of public criticism, sometimes accompanied by an innuendo of corruptability, for approving a product that could cause harm."

—Richard A. Merrill, former chief counsel for the FDA