The ACCC media release states -
The Homeopathy Plus! website contained statements to the effect that the whooping cough vaccine is “unreliable at best” and “largely ineffective” in preventing whooping cough, and that homeopathic remedies are a proven safe and effective alternative for the prevention of whooping cough.
The Court found that Homeopathy Plus! and Ms Sheffield engaged in misleading and deceptive conduct and made false or misleading representations by publishing statements on the Homeopathy Plus website to the effect that:
- the whooping cough vaccine is short lived, unreliable and no longer effective;
- the vaccine may not be the best solution for, of limited effect, and is unreliable at best in protecting against whooping cough; and
- the vaccine is largely ineffective in protecting against whooping cough, when in fact the whooping cough vaccine is effective in protecting a significant majority of people from contracting whooping cough.
The Court also found that Homeopathy Plus! and Ms Sheffield engaged in misleading and deceptive conduct and made false and misleading representations to the effect that there was an adequate foundation in medical science for the statement that homeopathic treatments are a safe and effective alternative to the whooping cough vaccine, when in fact no such foundation exists and the vaccine is the only treatment currently approved for use and accepted by medical practitioners for the prevention of whooping cough.
"Representations that may mislead consumers about the effectiveness of medical products or treatments are of significant concern to the ACCC", ACCC Commissioner Sarah Court said.
"In this case, there was a real risk that consumers might be influenced by the representations not to use the whooping cough vaccine and instead to rely solely on homeopathic products for the prevention of whooping cough. This is against the advice of medical professionals and the Commonwealth Department of Health."
The matter returns to court on 4 February 2015 to set a timetable for further evidence on penalties and other remedies.
The ACCC is seeking injunctions and pecuniary penalties, in addition to the declarations already made by the Court.The media release notes that
In April 2012, Homeopathy Plus! removed representations from its website at the request of the ACCC [noted here], 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.Homeopathy Plus and Sheffield have attracted criticism under the permissive TGA framework for advertising, a framework that is within the scope of the latest TGA review - noted here.
The judgment states
1. The First Respondent and the Second Respondent have in trade and commerce:
a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 18 of the Australian Consumer Law (“ACL”); and
b) in connection with the supply or possible supply of homeopathic treatments or products (“Homeopathic Treatments”), and in connection with the promotion of the supply of Homeopathic Treatments, made false or misleading representations that the vaccine publicly available in Australia for whooping cough (“Vaccine”) is of a particular standard or quality in contravention of sections 29(1)(a) and (b) of the ACL,
by publishing, or causing to be published, on the website www.homeopathyplus.com.au (“Website”):
c) from 1 January 2011 until around 26 April 2012, an article entitled “Whooping Cough – Homeopathic Prevention and Treatment” (the “First Whooping Cough Article”) in which a representation was made to the effect that the Vaccine is short-lived, unreliable and no longer effective in protecting against whooping cough;
d) from 11 January 2013 until around March 2013, an article entitled “Whooping Cough – Homeopathic Prevention and Treatment” (the “Second Whooping Cough Article”) in which a representation was made to the effect that the Vaccine may not be the best solution for, is of limited effect, and is unreliable at best, in protecting against whooping cough; and
e) from 3 February 2012 until around March 2013 an article entitled “Government Data Shows Whooping Cough Vaccine a Failure” (the “Government Article”) in which a representation was made to the effect that the Vaccine is largely ineffective in protecting against whooping cough;
when, in fact, the Vaccine is effective in protecting a significant majority of people who are exposed to the whooping cough infection from contracting whooping cough.
2 The First Respondent and the Second Respondent have in trade or commerce:
a) engaged in conduct that was misleading and deceptive or was likely to mislead and deceive, in contravention of section 18 of the ACL;
b) in connection with the supply or possible supply of Homeopathic Treatments, and in connection with the promotion of the supply of Homeopathic Treatments, made false or misleading representations that the Homeopathic Treatments are of a particular standard or quality in contravention of section 29(1)(a) and (b) of the ACL; and
c) in connection with the supply or possible supply of Homeopathic Treatments, and in connection with the promotion of the supply of Homeopathic Treatments, made false or misleading representations that Homeopathic Treatments have a use or benefit in contravention of section 29(1)(g) of the ACL,
by publishing, or causing to be published, on the Website:
d) the First Whooping Cough Article;
e) the Second Whooping Cough Article; and
f) the Government Article in conjunction with the Second Whooping Cough Article,
in which representations were made 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 when, in fact:
g) there is no reasonable basis, in the sense of an adequate foundation, in medical science to enable the First Respondent and the Second Respondent to state that Homeopathic Treatments are safe and effective as an alternative to the Vaccine for the Prevention of Whooping Cough; and
The judgment statesh) the Vaccine is the only treatment currently approved for use and accepted by medical practitioners in Australia for the prevention of whooping cough.
1. The first respondent, Homeopathy Plus! Australia Pty Ltd (“Homeopathy Plus”), is an Australian proprietary company limited by shares which was registered in New South Wales on 20 November 2008. It is not in dispute that, among other activities, Homeopathy Plus sells homeopathic products and treatments through its website at www.homeopathyplus.com.au (“the Website”).
2. The second respondent, Mrs Frances Sheffield, has been the sole director of the first respondent since 18 November 2009. It is common ground that she is the author of three articles which she uploaded onto the Website, namely: (a) “Whooping Cough – Homeopathic Prevention and Treatment” (“First Whooping Cough Article”); (b) “Whooping Cough – Homeopathic Prevention and Treatment” (“Second Whooping Cough Article”); and (c) “Government Data Shows Whooping Cough Vaccine a Failure” (“Government Article”) (collectively referred to as the “Three Articles”).
3. The domain name of the Website is registered to Mrs Sheffield and her husband.
4. The applicant (“the ACCC”) seeks declarations, injunctions, penalties and ancillary orders in respect of alleged contraventions by the Respondents of the Australian Consumer Law (“ACL”), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (“CCA”). The CCA and ACL came into force on 1 January 2011. The contraventions are said to arise from statements made in the Three Articles published on the Website.
5. This judgment addresses only the question of whether the alleged contraventions have taken place. As foreshadowed before the trial and confirmed at the hearing with the parties, the hearing covered all matters relating to the alleged contraventions of the ACL, the circumstances in which they occurred and the severity of those contraventions. The issues addressed by these reasons are similarly confined. That approach leaves open the option to the parties for evidence to be led otherwise in mitigation of penalty and the like, and for separate submissions to be made as to the pecuniary penalty, injunctive relief and other final orders sought by the ACCC aside from the declaratory relief sought which I will grant for the reasons I explain in the conclusion.
6. The dispute centres upon the proper characterisation of the representations made in the Three Articles and whether those representations were made in trade and commerce. The ACCC alleges that the Three Articles contained false, misleading and/or deceptive representations contrary to ss 18 and 29(1)(a), (b) and (g) of the ACL concerning: (a) the effectiveness of the Vaccine publicly available in Australia for the prevention of whooping cough; and (b) the safety and effectiveness of homeopathic treatments as an alternative to the Vaccine for the prevention of whooping cough.
7. No allegations are made with respect to any statements as to the effectiveness of homeopathic treatments for the treatment, as opposed to prevention, of whooping cough, or as a complementary treatment more broadly, or in respect of any vaccine other than that for Whooping Cough (“the Vaccine”).
8. Section 18 of the ACL provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
9. Section 29 has more specific elements and relevantly provides that:
(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services in connection with the promotion by any means of the supply or use of goods or services:
(a) make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
(b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or ...
(g) make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits;...
10. The ACCC alleges that Homeopathy Plus and Mrs Sheffield engaged in the impugned conduct as principal contraveners. For the reasons I set out below, I find the contraventions of the ACL alleged by the ACCC to be established.
