Irregular regulation

One of the things we expect governments to do is to make and enforce regulations that protect the health and safety of citizens. There are of course constant complaints about overregulation, but generally people accept that there have to be rules and that most of these rules are reasonable and beneficial.

An obvious area for regulation is the manufacture and distribution of medical products and services. The groups responsible for managing this are the Australian Competition and Consumer Commission, the Therapeutic Goods Administration and the various government sanctioned medical boards.

In 2013 Meryl Dorey, then president of the Australian Vaccination Network, appeared on the Internet radio station Fair Dinkum Radio and promoted Black Salve as a cure for cancer. This is an escharotic paste, that is it is a caustic preparation that effectively dissolves any tissues it comes in contact with. It is about as useful a cancer cure as burning cancer away with a blowtorch, although it works a little slower. The TGA politely asked Ms Dorey and Leon Pittard at the radio station to display a notice on their web sites admitting that they had been promoting this dangerous and useless nostrum. They refused. The notices were never displayed.

The correspondence between the TGA and the AVN over Black Salve was acquired under Freedom of Information rules. Most of it was just a to-and-fro of argument about the legality or otherwise of selling or advertising products and what the definitions of words like "advertise" really are. Then, right at the end, Ms Dorey threw down what she assumed would be her trump card. She claimed Freeman Of The Land protection. This is basically that individuals are in fact two people, one of whom has no obligation to pay taxes, rent or interest on loans or to observe laws and regulations.

(Look up "Freeman Of The Land" and "One People's Public Trust" in your favourite search engine, but be sitting down and be prepared to laugh heartily at how crazy people can be and still manage to turn on a computer.)

This is typical of the effectiveness of the TGA in regulating quackery. It can make suggestions, it can issue requests, but it really has no power of enforcement.

The ACCC does have powers of enforcement through the courts, but this can be a long, expensive and tedious process.

One of the great lies of "alternative" medicine is that homeopathy is a useful substitute for vaccination (this is called "homeoprophylaxis"). A leading player in this game of nonsense is Fran Sheffield with her Homeopathy Plus business. She not only claimed that homeopathy was a useful protection against pertussis, or whooping cough, but also claimed that the vaccine was short lived, unreliable and largely ineffective in protecting against the disease.

In April 2012, Homeopathy Plus removed these representations from its website at the request of the ACCC after the ACCC had expressed concerns they were misleading. Similar claims were then reinstated in January 2013, after which the ACCC instituted proceedings against Homeopathy Plus and Ms Sheffield.

In December 2014, the Federal Court found that Homeopathy Plus and Ms Sheffield had engaged in misleading and deceptive conduct and made false or misleading representations by publishing statements on the Homeopathy Plus website and ordered that this behaviour was to cease. Unfortunately, because the action had been brought on specific matter of homeopathy being a substitute for vaccination against pertussis, the court's ability to make a general order against offering homeopathy instead other vaccines was limited. If the ACCC wanted to stop homeopaths saying they could prevent measles for example the entire legal process would have to start again.

The final judgement was handed down in October 2015, prohibiting Ms Sheffield and Homeopathy Plus from making any claims that homeopathy could be used as an effective substitute for pertussis vaccination for a period of five years. Fines of $138,000 were issued, plus an order to play the ACCC's costs. As Ms Sheffield claimed to be broke and there have been no signs of the usual crowdfunding to pay for things like this, it is probably reasonable to assume that the money has never been paid.

Almost three years for this to meander through the courts! Two days after the final court appearance, Ms Sheffield published a newsletter in which she claimed that homeopathy could be used to cure autism. The tradition in Internet forums in circumstances like this is to use the single word "Sigh!".

The ACCC might have the legal power to regulate some aspects of the "complementary" medicine industry, but is severely constrained by the requirement to limit its prosecutions to specific cases of misleading or deceptive conduct and its limited budget to pursue everything that is wrong everywhere.

I'll discuss the uselessness of some of the "medical" boards at another time.

This article was published as the Naked Skeptic column in the May/June 2017 edition of Australasian Science