Federal Court Finds Homeopathic Website Claims About Vaccine Violate Consumer Law

The Australian Competition and Consumer Commission (the ACCC) have been successful in a misleading and deceptive conduct action taken against a homeopathy website, Homeopathy Plus!, and its director, Ms Sheffield,  that variously claimed that the whooping cough vaccine was “short lived, unreliable and no longer effective”, “of limited effect” and “largely ineffective”.  The Federal Court judgment, Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412, was handed down by Perry J in late December.  ACCC Commissioner Sarah Court welcomed the decision, and told the Sydney Morning Herald:

Background

The case revolved around three articles published on the website of Homeopathy Plus! Australia Pty Ltd.  All three were written by the company’s sole director, Ms Sheffield.  The first article was removed following an initial contact by the ACCC in 2012.  A revised version of the article was then uploaded, as well as a third article that was also sent as a newsletter alert to a subscription list.

The first two articles were named “Whooping Cough – Homeopathic Prevention and Treatment” and “Whooping Cough – Homeopathic Prevention and Treatment?” respectively.  The second (revised) article made various representations, including “Recent studies show that the vaccine has limited effect” and “protection from the current vaccine appears unreliable at best and side-effects are common” [at 154].

The third article was titled “Government Data Shows Whooping Cough Vaccine a Failure” and stated that “information from the Australian government shows that the whooping cough vaccine has been largely ineffective” and recommended “[i]n the absence of an effective vaccine for this dangerous disease, it is also wise to know about homeopathy and whooping cough” [at 163].

Submissions

The ACCC’s main contention was that the representations made in the articles were “false, misleading and/or deceptive in contravention of ss 18 and 29(1)(a) and (b) of the ACL because the Vaccine is, in fact, effective in protecting a significant majority of people who are exposed to whooping cough infection from contracting whooping cough”  [at 12]. They also argued that the articles “made representations to the effect that there was a reasonable basis, in the sense of an adequate foundation in medical science … to state that homeopathic treatments are a safe and effective alternative to the Vaccine for the prevention of whooping cough” [at 13].

The respondents argued that the statements were not made in trade or commerce, but were designed for information and education purposes, that the statements were not false, misleading and deceptive as they had a reasonable basis in homeopathic science, and that the statements were not false, misleading and deceptive in any case [at 17].

Decision

The respondents were prevented from relying on much of their expert evidence which was ruled out at the trial stage.  Perry J found some of the reports to be in “patently inadmissible form with no apparent regard to the rules of evidence” [at 23], particularly in regard to the rules on opinions and expert opinions in s 76 and s 79 of the Evidence Act 1995 (Cth).

Perry J highlighted that the expert evidence called by the ACCC:

Her Honour also noted that Ms Sheffield’s evidence fell well short of providing any credible basis for the Vaccine Representations [at 244}”, although she acknowledge that Ms Sheffield did not actually intend to mislead or deceive her audience, but was genuinely passionate about homeopathy.  However, she also found that:

Perry J further decided that the representations made in the articles were made in trade or commerce, as Homeopathy Plus was engaged in the sale of homeopathy products, even if no direct mention was made in the article of the products they had for sale.  The link to the “Online Shop” was available from all three articles.

A hearing on penalties in the case will take place in February.

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Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412

Federal court finds homeopathic 'vaccines' for whooping cough misleading (Amy Corderoy, The Sydney Morning Herald, 23 December 2014)

Media Release: Court finds Homeopathy Plus! vaccine claims misleading (Australian Competition & Consumer Commission, 23 December 2014)