ACCC v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412: Federal Court Hands Down Penalties

Friday 16 October 2015 @ 8.40 a.m. | Legal Research | Trade & Commerce

In the case of ACCC v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 (22 December 2014), the Federal Court has, on 14 October 2015, ordered Homeopathy Plus! Pty Ltd (Homeopathy Plus) to pay penalties of $115,000 and its director, Ms Frances Sheffield, to pay $23,000 in penalties for making false or misleading representations about the effectiveness of the whooping cough vaccine and homeopathic remedies as an alternative to the whooping cough vaccine, in breach of the Australian Consumer Law (ACL) [contained in Sch 2 to the Competition and Consumer Act 2010 (Cth) (the Act)].

Background to the Case

In December 2014, the Federal 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.

In April 2012, Homeopathy Plus removed representations from its website at the request of the ACCC, after the ACCC had expressed concerns they were misleading. Similar claims were then reinstated in January 2013, after which the ACCC then instituted proceedings against Homeopathy Plus and Ms Sheffield.

Claims made on the Homeopathy Plus website

The Homeopathy Plus website also contained statements to the effect that the whooping cough vaccine is “unreliable at best” and “largely ineffective” in preventing whooping cough. Homeopathy Plus and Ms Sheffield were also ordered to cease publishing the articles that contained the representations and remove them from the Homeopathy Plus website. The Court also ordered that they be restrained for five years from making:

  • certain specified statements to the effect that the whooping cough vaccine is ineffective, for so long as the vaccine is effective in protecting a significant majority of people from contracting whooping cough; and
  • any statements or representations to the effect that homeopathic treatments or products are a safe alternative to the whooping cough vaccine, for so long as there is no reasonable basis in medical science to support those statements or representations and the vaccine is approved for inclusion on the National Immunisation Program by the Therapeutic Goods Administration.

The Federal Court’s decision

In handing down her decision, Perry J found at [para 244] that Ms Sheffield’s evidence fell well short of providing any credible basis for the representations about the whooping cough vaccine, and that the publication of false representations about the effectiveness of the vaccine has potentially very serious and dangerous consequences.

The Court noted that (in a review provided by the ACCC):

  • even if one consumer has been diverted from vaccinating, the potential consequences may be very serious and potentially fatal;
  • the representations risked serious harm to the Australian community in potentially reducing the capacity of communities to cocoon vulnerable infants and others;
  • the representations conveyed the existence of a reasonable basis in medical science for stating that a vaccine for a serious and potentially fatal disease was ineffective, despite the evidence emphatically establishing that that was false; and
  • the representations conveyed that homeopathy was a safe alternative means of preventing whooping cough, despite there being no reasonable basis in medical science for the representation.

The ACCC’s reaction to the penalties

ACCC Commissioner Sarah Court said of this issue in a recent ACCC Media Release:

“Representations that may mislead consumers about the effectiveness of medical products or treatments are of significant concern to the ACCC. The potential consequences for the community of false or misleading representations about health and medical matters may be extremely serious. 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. This decision demonstrates that businesses must take care to ensure that any statement or representation made about the effectiveness of a particular medical treatment or product is accurate and supported by adequate scientific evidence. It is no excuse that the person making false or misleading representations genuinely believes in a particular viewpoint and is a passionate advocate for a particular practice.”

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Sources:

Court imposes penalty for false or misleading claims by Homeopathy Plus and Ms Frances Sheffield – ACCC Media Release MR 194/15

ACCC v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 (22 December 2014)

 

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