Issue 32 / 29 August 2011

IN March this year my first complaint to authorities about the promotion of diet product SensaSlim set in train a series of extraordinary events that are still being played out.

My complaint was made to three authorities — the Complaint Resolution Panel (CRP), which hears complaints about alleged breaches of the Therapeutic goods advertising code; the Therapeutic Goods Administration (TGA); and the Australian Competition and Consumer Commission (ACCC).

This complaint, and at least seven further complaints from other people, alleged that the promotion of SensaSlim on the internet, TV and in shops breached numerous sections of the advertising code.

In April, SensaSlim issued a claim against me in the NSW Supreme Court alleging my complaint was defamatory and claiming “general and punitive damages for libel in the sum of $800 000”, plus costs.

This action had the effect of stopping the CRP from hearing all complaints about SensaSlim due to a regulation that says: “If, after a complaint has been made to the panel, a proceeding begins in a court about the subject matter of the complaint, the panel cannot deal with the complaint until the proceeding is finally disposed of.”

SensaSlim subsequently sent out a newsletter to its franchisees that stated: “This defamation action, which could be in the courts for a year or two or even longer, basically gives an iron clad protection that nobody can raise a complaint against SensaSlim to the CRP and hurt us.”

The story broke in the media in May on Norman Swan’s Health Report on ABC Radio and the subsequent media coverage has been extensive.

In June, in response to submissions by the ACCC, the Federal Court ordered SensaSlim’s bank account be frozen. In July, that court ordered SensaSlim to publish a notice on their website including a statement that they had been “falsely representing that the SensaSlim Solution was the subject of a large worldwide clinical trial when in fact no such trial was conducted”.

Earlier this month, the NSW Supreme Court agreed to have the case against me struck out and costs awarded. Ironically, this appears to be a pyrrhic victory as the liquidator has said there is no money to award costs — and there are many other claimants.

However, a new defamation claim against me, similar to the first, had been filed in the Queensland Supreme Court by Peter O’Brien, a previous director of SensaSlim, this time for $1.075 million. Hence, round two of this saga has begun.

There are a number of lessons that can be drawn from this saga to date.

First, even if university-trained health professionals — in this case, including SensaSlim’s previous medical director, Dr Matthew Capehorn, and numerous Australian pharmacists — seem to support a product, this does not mean it is not snake oil.

Second, the TGA should have responded to previous calls to look more rigorously at complementary medicines before they are listed on the Australian Register of Therapeutic Goods. This would have saved many people — franchisees, stockists and consumers — from losing large amounts of money on SensaSlim.

Third, on receipt of well-documented complaints, the TGA could have rapidly de-listed this product using the powers it has under the Therapeutic Goods Act: “Registration or listing may be cancelled if the goods do not conform to an applicable advertising requirement”. Perhaps the Pan Pharmaceutical class action made the TGA more cautious about taking such action.

Fourth, regulations that suspend investigation of complaints while litigation plays out in the courts clearly encourage strategic litigation against public participation (SLAPP). These regulations must be repealed. National anti-SLAPP legislation should be introduced to protect whistleblowers.

Fifth, until the penalties for unethical promotion of therapeutic goods are applied in a timely manner, and are greater than the financial returns, some promoters are unlikely to be deterred.

And finally, the case taken against me shows the financial cost of defending a defamation action is now out of reach of the average individual. The cost of engaging lawyers and senior counsel to successfully defend the NSW case was $42 130.63, including a discount applied because of the public interest nature of the case.

Indeed, at one stage, my legal team advised me to roll over and withdraw my complaints on the grounds that continuing to defend this action would be unaffordable.

Fortunately, due to the heart-warming moral and financial support of many people, including health professionals, I was able to see my first case through to a successful conclusion. For the second case, Maurice Blackburn Lawyers have offered their services pro bono.

This response by civil society sends a strong message to companies contemplating similar tactics against complainants — the publicity will be counter-productive and these cases will be fought to a successful conclusion.

Dr Ken Harvey is adjunct senior lecturer at the School of Public Health, La Trobe University.

Posted 29 August 2011

13 thoughts on “Ken Harvey: Surviving the SensaSlim saga

  1. Professor Alastair MacLenann says:

    Dr Ken Harvey has my full support and should be lauded by all evidence-based health practitioners. Well done Dr Harvey.
    The Australian public needs much more protection and legislation against non-evidence based therapies that make false claims.

  2. Marion Lustig says:

    Ken, congratulations for your courage and persistence.

  3. amy says:

    I think the actions of SensaSlim have been outrageous. Australian society (and Australians’ health knowledge) would be a lot worse off if it weren’t for the likes of Dr Harvey.

  4. Scott says:

    Well done Ken! There is certainly a lot to learn from the process that you’ve had to go through but it’s thanks to your courage and determination to stand up for the rights of the public that we will prevail.

  5. Brett Forge says:

    Great work Ken, what a pity there aren’t a lot more like you!

  6. Chris Rook says:

    I would imagine this whole debacle will have been extremely stressful as well. Congratulations to Dr Harvey. I hope other health practitioners will speak up in the future.

  7. doubting Thomas says:

    My hat off to Dr Harvey. I suspect that the juggernaut of world financial deregulation will continue to erode the influence of such brave principled professionals , as evidenced by his case, the PAN v TGA debacle and the secrecy surrounding our negotiations in our Free Trade agreement with the USA.

  8. Dr Peter Forsell says:

    Well done, Ken. It is time that someone challenged the outrageous claims of some of the OTC products advertised on TV.

  9. Ali Barnes says:

    Thank you Dr Harvey for doing this on behalf of the rest of us doctors – and copping the flak

  10. Dr Mick Vagg says:

    If nothing else, the SensaSlim debacle has fully demonstrated how unscrupulous some of these companies can be, and how important the role of the TGA and ACCC is in policing the standards of manufacturing and advertising. We look forward to hearing of a successful outcome of this second, ill-advised action.

  11. shaun says:

    Thanks for standing up to the snake oil salesmen.

  12. cboughton says:

    There should be the same requirements on makers of alternative/complementary medicines to obtain licencing by the TGA, as are applied for “orthodox” drugs. All preparations for sale should have been vetted by the TGA, as some herbal extracts and mixtures for instance, do have toxic effects, and in addition, proof of efficacy should be demanded. Keep up the good work Ken.

  13. Dr John Buchanan says:

    Good onya Ken; I have long admired the stance you have taken about so-called alternative medicines, which should be better regulated as you say; the public is being misled, and the taxpayer often paying for unrealistic statements about unproven products.

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