The following message was sent to a number of members of parliament on 2015/11/17:
To whom it may concern,
I am writing to you on behalf of the Society for Science Based Healthcare regarding the Natural Health and Supplementary Products Bill, which we believe is due to have its 3rd reading in parliament soon.
The Society for Science Based Healthcare is an advocacy group that supports patients’ rights to make informed decisions about their healthcare. As part of this, we work to counter misinformation about health issues in New Zealand. We also support regulation that upholds this right to make informed decisions, and measures that are taken to protect consumers from being misinformed.
We have had extensive experience with misleading health benefit claims made about products that will fall within the regulatory scope of the Natural Health and Supplementary Products Bill. We have a strong interest in this bill, as it will have a significant impact on the work we do, but as the Society did not exist when the call for submissions was made in 2012 we have not had an opportunity to have our say on this bill.
We welcome the attempt to introduce new legislation to rein in what has, in recent years, been the mostly unregulated “natural health” industry in New Zealand. Some provisions of the bill, such as clause 13(2A) which requires summaries of evidence used to support health benefit claims be made publicly available online, are particularly laudable. This requirement has the potential to empower consumers to make better informed decisions, but unless it is made clear how these summaries can be accessed it seems unlikely consumers will view it. We think it would be appropriate to include a requirement for information (such as a URL) on how to access the summary of evidence for any approved claim to accompany that claim on labels and in advertisements.
However, we are concerned that one of the provisions of the bill will provide legal protection for some misleading health benefit claims made about natural health and supplementary products. This could undermine patient autonomy and other consumer protections such as the Advertising Standards Authority’s codes of advertising practice and the Fair Trading Act.
The bill allows for health benefit claims to be supported by “traditional evidence”, which is essentially defined as evidence of use in clause 5:
traditional evidence means evidence of traditional use of a substance based on knowledge, beliefs, or practices passed down from generation to generation
use, in relation to a product, includes—
- consumption of the product; and
- being administered the product.
Clause 13 of the bill states that product notification will not be complete unless evidence is supplied for health benefit claims made about the product. We strongly agree with the intention of this clause, as consumers should be able to safely take those promoting these products at their word when they claim it will confer a health benefit. However, clause 13(8)(b) specifies that traditional evidence, as defined in clause 5 as evidence of use, can be used to support health benefit claims.
Evidence of use is not evidence of efficacy. We are concerned that, by legislating that evidence of use can be used in place of evidence of efficacy for the purpose of approving health benefit claims, the end result will be that consumers will be misled, and the businesses misleading them will be protected by this legislation.
Just this month, we have seen multiple cases of businesses that promote natural health products defending unsubstantiated and misleading health benefit claims by pointing to evidence of traditional use.
On the 6th of November, the Commerce Commission issued a warning to the company Baa Baa Beads regarding misleading advertising of “amber teething necklaces” (http://www.comcom.govt.nz/the-commission/media-centre/media-releases/detail/2015/baa-baa-beads-warned-over-health-claims). Although the Advertising Standards Authority had previously upheld multiple complaints against this company (starting with one we lodged in 2013) on the basis that they were making misleading therapeutic claims, they had not withdrawn those claims until the Commerce Commission took action against them. Instead, they asserted that their claims were justified as the products had a long history of traditional use for those therapeutic purposes.
However, the Commerce Commission’s investigation this year found the company’s claims were not substantiated and therefore likely in violation of the Fair Trading Act. In this way, consumers have been protected against being misled by this business due to the requirement that their claims must be substantiated by appropriate evidence.
On the 9th of November, the Advertising Standards Authority upheld two of our complaints against advertisements for the homeopathic products “Colic Calm” and “Cramp-Stop” (http://asa.sbh.nz/complaint/15394 and http://asa.sbh.nz/complaint/15392). The advertiser, Healthpost, tried to support their claims with evidence of traditional use:
The herbal ingredients used in Colic Calm have been traditionally used to aid digestion, soothe the stomach and have a calming effect on the body.
Homeopathic medicine has a long and comprehensive history of traditional use.
Yet they were unable to provide credible scientific evidence to substantiate the health benefit claims made about their products in advertisements, so the Advertising Standards Authority upheld the complaints and said the advertisements were “likely to mislead the consumer”.
Practically every day, we see misleading health benefit claims made about natural health and supplementary products that are not supported by credible evidence of efficacy, yet have been historically used for a therapeutic purpose. Under the proposed Natural Health and Supplementary Products Bill, it appears that businesses such as those in the examples above could be protected when they make unsubstantiated health benefit claims and only support them with evidence of traditional use.
The bill’s primary purpose should be to protect and uphold consumer rights, particularly the right to make adequately informed decisions about natural health and supplementary products. But if the bill could also be used to protect misleading health benefit claims, then the effect of the bill would work directly counter to that intent. Instead of protecting consumers from being misled, this loophole in the Natural Health and Supplementary Products Bill will offer protection to the more unscrupulous sellers of these products.
It is of utmost importance that this loophole be closed before the Natural Health and Supplementary Products Bill is passed into law. The only evidence used to support health benefit claims should be evidence that the claims are true, not evidence that a product has been used in the past.