Jane McCredie: Law shuts down criticisms

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to Australian franchisees of SensaSlim last month, Capehorn said he had ended his association with the company and withdrawn permission for it to use his name or image.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