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THE law of defamation is there to protect us all from malicious or untruthful scuttlebutt — and a good thing too.
But surely things have gone too far when it becomes easier for commercial interests to make unsubstantiated claims about health products than it is for a doctor or scientist to criticise those claims.
The BMJ reported last week that the British government is proposing to change defamation laws in that country to protect people who state honest opinions from being sued by organisations that may not like those views.
The threat of legal action was often used to stifle scientific debate and prevent responsible investigative journalism, the BMJ said.
That’s something public health physician Dr Ken Harvey could relate to.
Harvey has been a long-time campaigner — including in his recent article in MJA InSight — for more stringent regulation of the alternative medicine industry in this country, and he has copped a lawsuit for his pains.
After he complained to the Therapeutic Goods Administration about the weight-loss product SensaSlim, Harvey found himself facing a reported $800 000 defamation suit initiated by the product’s manufacturer.
Among claims made for the product are that data from “the world’s largest weight loss trial” show a staggering 87.2% of subjects lost 10% or more of their body weight. And that was without any instructions to modify their diet or exercise habits.
Miraculous indeed.
At time of writing, the company continues to carry video endorsements on its website from Dr Matthew Capehorn, clinical director of the UK’s National Obesity Forum, despite the GP having publicly disassociated himself from the product.
In an email to Australian franchisees of SensaSlim last month, Capehorn said he had ended his association with the company and withdrawn permission for it to use his name or image.
“The SensaSlim product that you have invested in may well be an effective weight loss product,” he wrote, “but in my time as Research Director for SensaSlim, I never saw any evidence to substantiate the weight loss claims made in their clinical trial.”
After outlining his own disagreements with the product’s manufacturers, Capehorn wrote that he had been advised not to discuss anything else at this point “for legal reasons”.
Ah, legal reasons… If there’s one thing this case shows it’s how easy it is for commercial interests to use the mechanisms of the law to shut down debate.
Not only can experts be muzzled by defamation cases, but government regulation in this country forbids the TGA from investigating a complaint about a product while legal proceedings are underway.
So, the message for any company facing criticism in the future is clear. If there’s a complaint to the TGA about one of your products, sue the complainant and you can shut the whole thing down quick smart.
In the meantime the TGA’s overall purpose — “to protect public health and safety by regulating therapeutic goods” — is left languishing.
Jane McCredie is a Sydney-based science and medicine writer.
Posted 20 June 2011
Yes , the false, misleading, or at least disingenuous claims made on all manner of goods from margarine to prostate treatments is a constant source of aggravation. Thanks for the article Jane but I wonder whether the powerful lobbies of advertising and so-called alternative or complementary medicine are going to take any genuine criticism lying down.
By the way, I am not knocking alternative medicine per se.
@ Joe, SLAP cases are an intimidating tactic – not because they are ‘right’, but because they cost an arm and a leg to defend!
I find it interesting when people write articles about the due process of the law, as if doctors and scientists are above it. Surely if he’s right he’ll be right?
This story brings into mind: Is any regulatory company or medical board going to take on the company that so boldly advertises impotence treatment via “nasal delivery”?
Yes, Rob, you would have to think Dr Capehorn was – at the very least – naive. This is what he said about the white paper in his letter to the franchisees: “I have previously stated that the White Paper I produced for them [SensaSlim] was a review of the product, done in good faith, based on information that was provided to me. Despite requests, I have never seen evidence of the original clinical trial, and it has never been published in a peer reviewed medical journal. Therefore, the White Paper holds no scientific relevance, until that original trial is published. It has not been published at the European Congress of Obesity in Istanbul as suggested recently.”
If these quotes from Dr Capehorn are accurate, he is being somewhat disingenuous. In support of their claims, the SensaSlim website refers to a ‘clinical trial’ the results of which are reported in a ‘medical white paper’ written by Dr Capehorn himself (http://www.sensaslim.com/whitepaper/index).
surely you will not get any comments, for obvious reasons. At least we have not had death threats like the climate scientists have had… cheers