Monday, 5 June 2017

Antipathy Towards the Advertising Standards Authority #2

Seemingly, not being satisfied with the legal advice that they doubtless received (see a previous post), the Society of Homeopaths (SoH) have decided to hold a meeting with other CAM bodies. Including Freedom4Health amongst others.

Why the SoH think having a meeting is going to change to anything is unknown. The meeting is unlikely to result in any kind of positive outcome. If anything, simply announcing the meeting has had a negative PR effect. It would not be surprising if mention of this meeting is removed from the SoH website.

This is a strange organisation. It seems to exist purely to attack the Advertising Standards Authority (ASA). 

The person behind Freedom4Health is Martin Weightman. The biography on the website fails to mention that Weightman is a high ranking Scientologist. It is important to state that there is no evidence that Freedom4Health is a front organisation for the Church of Scientology (CoS). There is no evidence of entryism either. The problem for the SoH with treating with Freedom4Health is not one of facts but negative perceptions of the CoS and the taint by association. In the eyes of many Scientology is a "toxic brand". Discussion of the CoS is far beyond the scope of this blog.

Freedom4Health don't actually seem to do a great deal. It issued newsletters, was active on Twitter and Facebook (account seems to dead), had an exciting Freedom4Health day or two but seems very quiet now. Of course, it is entirely possible that it is active in ways that are not visible on the internet but that seems unlikely - social media is a key tool for promotion these days. 

It urges people to take action in various ways not quite grasping where consumer protection law stems from. They state -
F4H is not advocating anything immoral but simply asking for fair treatment. If all association stood together and demanded the same, that would be quite a voice.
Freedom4Health could be seen as advocating that individuals ignore any Code of Ethics that any trade association they belong to might have. The difference between ethics and morals is a very philosophical question. It is certainly the case that Freedom4Health are advocating a course of action that would be unethical for some. "Fair treatment" is also a very difficult and nebulous concept. Is this about justice and due process in a quasi-legal sense? Is this about competition? 

Writing to MPs, trade associations, making complaints to OFCOM is ultimately a futile exercise as most of the relevant legislation originates from the EU. MEPs are a better target although Brexit may change things if patient lobbying is done although it may be many years before anything can possibly happen.

The Cases section of the website is interesting, partly because of which cases are mentioned. One of the posts on this blog regarding veterinary homeopathy mentions Roger Meacock, who turns up on the cases section. His is hardly a success story given that PayPal have suspended his account due to sale of dangerous products. Jennifer Hautman is also well known to some for her somewhat strange pronouncements. The original ASA ruling is worth reading as it demonstrates a complete misunderstanding of the status of homeopathy in the UK and no knowledge of the history of NHS homeopathy or how commissioning of services works.

Their solutions to "ASA bullying" are laughable. The General Regulatory Council for Complementary Therapies (GRCCT) would appear moribund. The GRCCT does not seem to ever done very much online. It is not worth discussing.

It seems Freedom4Health's essential message is for practitioners to ignore the ASA. This is a strategy that can work because of cuts to Trading Standards funding - quite simply, TS do not have the resources to pursue practitioners in breach of consumer protection law. However, whether this is tenable long term is a different question. It certainly would not be for the SoH!

Alliance of Registered Homeopaths
In concentrating on the SoH's problems in the previous post, this article was missed. Karin Mont, who is the chair of the Alliance of Registered Homeopaths (ARH) is known for rather odd statements at times. Before discussing this rather extraordinary document, it is necessary to look at the ARH's Code of Ethics.
Legal obligations  
Criminal and civil law  
30 Registrants are required to comply with the criminal and relevant civil law of the country, state or territory where they are practising.  
31 Registrants must observe and keep up to date with all legislation and regulations relating directly or indirectly to the practice of homeopathy. 
32 References to any legislation or regulations throughout this code shall include any amendments or other alterations, repeals or replacements made in law since the date they came into force. Any reference to the singular shall include the plural and references to the feminine shall include the masculine.
Advertising and Media  
36 All advertising must be published in a way that conforms to the law and to the guidance issued in the British Code of Advertising Practice. 
37 Professional advertising must be factual and not seek to mislead or deceive, or make unrealistic or extravagant claims. Advertising may indicate special interests but must not make claims of superiority or disparage professional colleagues or other professionals. 
38 Advertising content and the way it is distributed must not put prospective patients under pressure to consult or seek treatment from a registrant. 
39 No registrant may use their ARH registration status in the advertisement or promotion of any product or remedy.
And yet in her article, Karin Mont states -
To date, the ASA appears to have based the majority of its adjudications against homeopaths upon subjective, and highly selective opinion so, in the absence of substantiable fact, it seems unlikely that either TS or the MHRA would be in a position to support the ASA by taking legal action. This point has not deterred the ASA from referring to TS as their ‘legal backstop’, and misleadingly implying to advertisers that statutory enforcement is the inevitable consequence of noncompliance. This is definitely not the case, which means that if we are contacted by CAP about the wording on our websites or promotional materials, we can choose how to respond.
This would seem to contradict what the ARH Code of Ethics state with regards to compliance with advertsing regulations and consumer protection law. Mont seems to have problems with concepts like "fact" and idea that "information" presented on a website that promotes goods and services is considered commercial speech. Mont also makes statements like -
Homeopathic medicinal products fall into four different categories, full details of which can be found on the MHRA website but, from the profession’s perspective, we need to be aware that there are licensed and unlicensed products. In the UK, the advertising of all unlicensed product is prohibited. This means that we cannot claim or imply that an unlicensed homeopathic medicine can treat a named medical condition and, as the majority of our medicines are unlicensed, we should not refer to the potential therapeutic benefits of any of them in our promotional materials. A few homeopathic medicines are licensed under the National Rules Scheme (NRS), and include indications for use ‘within the UK homeopathic tradition’. These indications relate to the treatment of mild, self-limiting conditions which would not normally require medical supervision. 
This is only part of the story. As a previous post on medicines regulation points out, the supply of unlicensed homeopathic medicines is legally questionable. This is not stated in Mont's article although it is believed that all the homeopathic trade associations and homeopathic pharmacies are aware of the issues. This would appear to a common theme in some articles. There is omission of uncomfortable information.

UK lay homeopathy to a large degree has prospered because of benign indifference on the part of regulators, although there is reason to believe that has been in slow decline for a number of years.

One thing that UK lay homeopath does not seem to grasp is that if they continue to disregard the ASA, the MHRA could become involved. Unlike TS, the MHRA is not funded by Government. It is self-funding.

UPDATE: The Society of Homeopaths has at times not managed the content of its website very well. Some content that was previously available to all is now viewable only to members with a SoH login. Also, some content seems to have disappeared now that the SoH have a new website design (and most likely content management system). One category of document that was available were the minutes of Society of Homeopaths Board meetings. The content is often incredibly dull but there is evidence of SoH antipathy towards the ASA... 

To quote from the meeting of 08/02/2017 

10 Possible Legal challenge to ASA 

MT (Mark Taylor, CEO of the SoH) spoke about the background of the legal challenge.   

ASA haven’t been in contact recently, however they did say they would be sampling 10% of members websites and if no problems were found, then they would move on. However it is more likely that any websites that are not compliant will be contacted.

There was some momentum of arguments to challenge the ASA, it was sensible that the Society acquirer legal advice whether it would be successful or not to legally challenge the ASA. Margaret Obi, a freelance lawyer was commissioned to draw up a report. Margaret concluded that a couple of the routes might work, however a high level of work, research and evidence would be required.    She concluded that to take further action would lead to huge costs with little chance of success.   

This raises questions as to why the SoH choose to seek a meeting with Freedom4Health etc unless it was to communicate the futility of a legal challenge? Unfortunately, as the SoH have finally got round to tightening document access, the outcome is unknown.