On December 22, in a case initiated by the Australian Competition & Consumer Commission (ACCC) in the Federal Court of Australia, a regulatory judgement was handed down that Homeopathy Plus Australia Pty Ltd and I, Fran Sheffield, violated Australian Consumer Law with statements about the whooping cough vaccine and homeopathy.
We were taken to court by the ACCC because I wrote, and the Homeopathy Plus website published, three articles that discussed the whooping cough epidemic affecting Australia at that time, the effectiveness or lack thereof of the whooping cough vaccine, and homeopathic alternatives for its treatment and prevention.
The first two articles mainly focussed on treatment with minimal statements about prevention. The third article mostly spoke of a report on government data about the whooping cough epidemic in which the word “homeopathy” was mentioned once.
With a judgement now in place, I am free to give a brief outline of events concerning the case and why I believe we lost. Until penalty orders are handed down on February 4, some matters still can’t be discussed but, basically, an informed judgement is impossible if much of the evidence can’t be placed before the Judge and if that which remains is considered outside its homeopathic context.
In this and future posts I will cover how:
- The case was compromised by the ACCC “moving the goalposts” after legal action had commenced
- Difficulties with expert witnesses and expert reports impacted the case
- Limited funds and limited time created an almost impossible task for our legal team
- Problems with case preparation and management affected our evidence
- Past statements, appeasements and omissions by homeopathic associations and organisations sealed a negative judgement on homeopathy
Let’s make a start on the first point.
Moving the goalposts
The February 2013 warning letter from the ACCC to remove the above articles from our website before they commenced legal action, and their subsequent “Originating Statement” with which they commenced action a few days later, were different to a new and amended document that was served on us in April once our preparations for court, based on the first Originating Statement, had begun.
The documents differed in two key areas:
1. The charge against us about homeopathy’s ability to treat whooping cough was dropped completely.
2. Inserted in numerous places throughout the document was the statement that we had, “made representations to the effect that there was a reasonable basis, in the sense of an adequate foundation, in medical science to enable it or them, as the case may be, to state that Homeopathic Treatments are a safe and effective alternative to the Vaccine for the prevention of whooping cough (the Homeopathy Alternative Reasonable Basis Representation).”
If you had to read that last statement more than once to understand it, you’re not the only one: so did we.
We’ll quickly look at these key changes and the effect they had on us.
Change 1: The first two articles to which the ACCC took exception were mostly about the treatment of whooping cough. (The third article did not mention it’s treatment or prevention at all. It referred to government data about the epidemic).
As you would think, any homeopath with clinic cases of diagnosed whooping cough which had made a remarkable recovery with homeopathic treatment could easily defend the “treatment” aspect of the case. So could we.
The ACCC, after removing their claim against the whooping cough treatment information in our articles once legal action had started, then withdrew to a smaller area of contention in which it knew it would be less vulnerable – that of prevention.
Change 2: I won’t repeat that confusing statement from the ACCC legal team again but in no instance did our articles make “representations” (statements) that there was a “reasonable basis” or “adequate foundation” in “medical science” for the things we said about preventative homeopathy and the whooping cough vaccine.
On the contrary, our information had been placed on a homeopathy website with a name that included the word homeopathy and a disclaimer at its base saying the information provided was homeopathic in nature, and the articles in question were obviously written from a homeopathic perspective. In fact, the articles even questioned medical and government advice regarding the whooping cough vaccine.
It should have been obvious to anyone reading those articles that they were not claiming to be based on “medical science” which is commonly understood to mean allopathic (conventional) medicine – an approach with entirely different and diametrically opposed principles to homeopathy.
So, you might wonder, how was it decided during the court case and judgement that we were depending on “medical science” for our statements? We wonder, too, but more consideration will be given to that concern, later.
Compromised but more to come
So, before we even got to court our case was compromised by changes the ACCC made to their initial claims and charges; claims we had felt had a reasonable chance of being defended should we embark on legal action. These changes were pivotal in reducing our ability to defend the case.
Next article, I will consider the difficulties faced with expert witnesses and their reports.
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