A bit fishy: nutraceuticals, marketing and procedural justice

Pills made from “wild krill” (apparently so much better for you than domestic krill)? Antioxidants from exotic plants, chlorophyll or the “Sicilian Blood Orange”? Promises of extra vitality, vim and vigour? Endorsements by celebrities? What is variously dubbed the dietary supplements, nutraceuticals…

Hf9k7xyr-1340342193
The dietary supplements, nutraceuticals or vitamins industry makes a lot of money. hit thatswitch/Flickr

Pills made from “wild krill” (apparently so much better for you than domestic krill)? Antioxidants from exotic plants, chlorophyll or the “Sicilian Blood Orange”? Promises of extra vitality, vim and vigour? Endorsements by celebrities?

What is variously dubbed the dietary supplements, nutraceuticals or vitamins industry is about marketing rather than just chemicals. It’s about the marketing of substances that may or may not be needed by consumers. It’s also about money – enough money for clever lawyers to find holes in Australia’s weak regulation of complementary medicine.

Questions about the effectiveness of the Australian regime were illustrated in a Federal Court decision last month. Swisse Vitamins Pty Ltd v The Complaints Resolution Panel [2012] FCA 536 followed a request by the Panel for Swisse, a high-profile vendor of “better living” products featuring undomesticated krill and other exotica, to withdraw particular advertisements and not repeat representations regarding those products.

The Panel is an industry-government body that derives its authority from the Therapeutic Goods Act. The associated Therapeutic Goods Advertising Code restricts advertising that is “likely to arouse unwarranted and unrealistic expectations of product effectiveness” and “mislead, or be likely to mislead”. In assessing what is unwarranted or misleading, the Panel considers the “probable impact upon the reasonable person to whom the advertisement is directed”.

The Panel is promoted as:

part of a system of advertising arrangements for therapeutic goods designed to ensure public health and safety while allowing a dynamic and fair environment for the manufacturing of products. These arrangements control promotional messages and general information about products to the public and are in place to ensure that all communications are truthful, valid and not misleading, such as by arousing unwarranted expectations or downplaying possible risks.

In essence, the Panel deals with complaints about problematical advertising that would otherwise be addressed by the Australian Competition Consumer Commission (ACCC), the national consumer protection agency that has dealt with misleading claims such as the celebrity-endorsed Power Balance wrist bands that “may be no more beneficial than a rubber band”.

The Panel received a complaint from a medical expert and consumer advocate about advertising by Swisse of products such as Ultiboost Hair Skin Nails, Liver Detox, Wild Krill Oil and Co-enzyme Q10. The co-regulatory scheme for diet supplements means that regulators rely on public-spirited advocates and consider specific complaints rather than systematically monitoring the market or initiating investigations.

The Panel concluded that the advertising was indeed problematic. It accordingly requested Swisse to withdraw the advertisements and not repeat certain claims – that the benefits of particular products (enhanced “immune defence”, better memory, better sleep, glossy hair, prevention of ailments or illnesses) were “clinically proven” and “independently tested”.

Swisse defended its “You’ll feel better on Swisse” slogan as a “generic marketing statement” that “merely amounts to branding or ‘marketing speak’ that consumers are not likely to take seriously”, what lawyers characterise as puffery. It also defended specific claims. Swisse expressed its unhappiness by going to the Federal Court, relying on the Administrative Decisions (Judicial Review) Act in arguing that it had been denied natural justice or procedural fairness by the Panel.

In essence, Swisse argued that the Panel’s “requests” to modify the advertisements were in fact decisions made without allowing Swisse to defend specific claims. The Panel responded that it had sufficiently alerted Swisse that the advertisements were contentious. And it had drawn attention to relevant provisions of the Code. Swisse had been invited to provide any material supporting the company’s claims.

The Court concluded the Panel had to do more. It commented that:

It is a fundamental requirement of procedural fairness that a person whose interests may be prejudiced by an administrative decision is entitled to “have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it.

The Panel had gone beyond the specific complaints and had failed to consistently direct Swisse’s attention to the specifics. Its request to restrict the Swisse slogan had been too broad.

The Court’s decision doesn’t mean that Swisse’s claims about its products have been found to be valid. In essence, the Court has instead handed the problem back to the Panel for review. That review may well find that Swisse’s claims breach the Code.

What does the case tell us about regulation rather than specific products?

If we expect bodies such as the TGA’s Complaints Resolution Panel to deal with rich determined corporations, we need to adequately resource those regulators in order to avoid procedural difficulties. Inadequate resourcing means that problematical marketing will continue to be rewarded and public interest advocates will be increasingly discouraged. Unsurprisingly, the Court commented that the Panel was unfortunately forced to defend its own decisions.

The case highlights the need to revisit the Code in terms of examining the adequacy of regulating products that are perceived by the public as having therapeutic properties. It also tells us that amid enthusiasm for digital literacy, we need to build a therapeutic literacy into the K12 curriculum, so that everyone’s clearer about the benefits – or otherwise – of krill and chlorophyll.

Join the conversation

32 Comments sorted by

  1. Bruce Moon

    Bystander!

    Bruce

    While I enjoyed your article, I found myself thinking "this is but a repeat of so many other similar matters where the seller questionably manipulates the product image and the regulator gets bogged down in a mire of pedantics".

    I also wondered why Australia is repeatedly grappling with this entrenched problem in marketing on a case by case basis.

    In recent years I have come to the view that so many of Australia's economic sectors are effectively a duopoly. And, many of the remainder…

    Read more
  2. Peter Ormonde

    Peter Ormonde is a Friend of The Conversation.

    Farmer

    Wild krill... just love it.

    Actually now that you mention it I guess we should be relieved that they aren't battery krill.

    I'm thinking there could be a market niche for free-range krill myself. Quieter than cattle and - unlike ticks - there are no predators or parasites in sight ...save for the odd sperm whale that manages to wriggle up the creek.

    Isn't it wonderful how advertising shapes our world? The Madmen run the show.

    report
  3. Dianna Arthur

    Dianna Arthur is a Friend of The Conversation.

    Environmentalist

    Consumers have been sucked in by 'snake oil' sellers since there were snakes and sellers.

    What drew me to Bruce Arnold's article was the sub topic of 'wild krill'. I have a visceral reaction to the TV adverts on the benefits (so-called) of 'wild krill' (as if there is any other kind) every time I see the adverts. Leaving aside the snake-oil claims - since when was fishing for krill to make Omega-3 fatty acids, legal? Krill is the basis of the marine food chain. We can obtain Omega-3 from many…

    Read more
  4. Miss Eagle

    logged in via Twitter

    I have had severe and adverse reactions to statins, prescribed to lower cholesterol. Much to my doctor's dismay I refuse all statins. I have also refused to take a specialist prescribed fenofibril which an RACGP fact sheet advises should not be taken by those with adverse symptoms from statins.

    This drives my GP crazy. So one of my GP's colleagues suggested I take krill - 1000mg daily. I understand that whales, who survive on krill, are running rather short of it these days so would like to manage without it. Heart attacks and strokes do not abound in my family tree. I haven't stopped the krill yet because I thought I would wait for a blood test to see if the krill had made an appreciable difference over time in my cholesterol level.

    If people have intelligent and helpful suggestions on how to manage this "patient from hell" and her cholesterol without adverse drug reactions or stealing krill from the whales, would be pleased to hear from you.

    report
    1. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Miss Eagle

      Miss Eagle, I suspect the whales would be more than happy to let you have your 1,000 mg a day of their krill - wild, battery or free range - being the generous creatures they are. It would be less than a burp's worth.

      While we're at it I would like to suggest that this become the standard unit of krill measurement for us primary producers (and secondary consumers) - the Burpsworth.

      report
    2. Graeme Harris

      Director

      In reply to Miss Eagle

      If you look at Coronary Heart Disease as an immune dysfunction and that cholesterol is a marker associated with the immune dysfunction then you should
      a) eliminate all diary products from your diet
      b) cause your GP to measure the High Sensitive C-Reactive protien, a marker of the immune dysfunction above
      c) Realise that although there is a difference between fish and plant derived omega 3 effects there is no difference between species.

      report
    3. Dianna Arthur

      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Miss Eagle

      Dear Miss Eagle

      Krill is the basis for the entire marine ecosystem - not just whales. Krill biomass has been in decline since studies began in the 1970's: http://www.pnas.org/content/108/18/7625.full.

      I have a genetic predisposition to high cholesterol, I cannot tolerate statin drugs as they aggravate the symptoms of Fibromyalgia. I manage as best I can by eating as much natural unprocessed fresh local food as possible - including fresh fish keeping in mind which fish are sustainable and those…

      Read more
    4. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Dianna Arthur

      Excellent Ms Art.

      I often find myself wondering why we just wash so much of our medications and vitamins away into the sea.

      Australia's urine would be the most extraordinary cocktail of complex and undoubtedly useful molecules and nutrients.

      I wonder if there's a market for recycled "magic ingredients". Prefiltered by kidneys and recycled by the sun. I shall call Cuthbert down at the ad agency immediately.

      I wonder how my free range krill would go in it. Opportunity abounds.

      report
    5. Miss Eagle

      logged in via Twitter

      In reply to Dianna Arthur

      Thank you Dianna and to Graeme Harris whose comment is below. You say "the purveyors of alternative medicines have won you". This is not so - and is why I have raised the query. The krill was prescribed not by a purveyor of alternative medicines but a mainstream GP in suburban Melbourne. One thing I didn't mention - and Graeme Harris could advise. I am on Warfarin because of unexplained clotting. When I was put on Warfarin in the beginning I was advised that there were certain things, high…

      Read more
    6. Miss Eagle

      logged in via Twitter

      In reply to Graeme Harris

      Graeme, I have replied to your comment in conjunction with replying to Dianna Art's comment so could you please see above. I am taking on board points a) and b) but need some clarification re c).

      Sincerely
      Brigid

      report
    7. Dianna Arthur

      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Miss Eagle

      Brigid

      Medical practitioners are as susceptible to advertising as any other human.

      I believe it is better to obtain the additional Omega fatty acids through traditional means than add yet further pressure on an already depleted and threatened ecosystem such as our oceans.

      At least when Goji Berries were all the rage, you could grow more of those, not so krill.

      report
    8. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Dianna Arthur

      Now Miss Art that's just typical of the flat-footed apathy and fatalism that is strangling our wide brown land of late.

      Have you ever tried to grow krill? How hard can it be? I reckon a nice frothy soup of nutrient laden hippy wee and they'd take off like a rocket - I'd be kneedeep in oodles of burpsworths of tiny organisms in no time and all organic - more or less. Some of it anyway.

      So I reckon they'd be a cinch myself ... and a lot easier to muster than black angus steers and only very tiny low little fences.

      More get up and go Dianne - Just think to yourself - what would Gina do?

      report
    9. Dianna Arthur

      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Peter Ormonde

      Gina would contract someone to dig a big pit in the middle of WA - very krill unfriendly.

      Gina would buy her way to have her views heard by the masses - just like big corpa/pharma everywhere.

      Gina follows the maxim of capitalising her profits and socialising her losses - commonly known as Creative Accounting.

      Did I hear someone say "Advance Oligarchy Fair"?

      report
    10. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Dianna Arthur

      Now on the surface perhaps Gina's footprints ... the string of yawning red holes scattered all over the west ....might appear somewhat krill unfriendly. But not if we, the clever country, look below the surface and sense the palpable opportunities at and beneath our future feet.

      If we truck in oodles of vitamin enhanced hippy wee, say through a recycling program based in health food stores (like for coke bottles, but full and filtered) and create ourselves a vast ocean of nutrient laden broth in the back of beyond .... we could have the global krill market to ourselves.... a monopoly of microorganisms. Whales would be lining up on our coasts like East Berlin shoppers demanding our organic free range krill.

      So let's all take a leaf from Gina's book - hopefully in her own fair verse - and plan ahead... It's time to make the whales pay!!! You know it makes sense.

      report
    11. Lorna Jarrett

      PhD candidate, science education; Physics teacher

      In reply to Graeme Harris

      Hi Graeme,

      Why eliminate dairy? I ask out of pure curiosity - I recently gave up milk / yoghurt because of lactose intolerance.

      report
    12. Graeme Harris

      Director

      In reply to Lorna Jarrett

      Dairy has random octapeptides to give new born protein, octapeptides are immune system signal system, some random code will be inflamatory.
      Putting Coronary artery disease in an immune system dysfunction explains why omega 3 is good for the arteries and why diary can be problematic.

      report
    13. Lorna Jarrett

      PhD candidate, science education; Physics teacher

      In reply to Graeme Harris

      Thanks for the info Graeme - I will follow this up.

      report
  5. Seán McNally

    Market and Social Researcher

    Good article Bruce.

    The ability for products to claim benefits they do not have at hand support, or ability to trawl through the literature to support after being challenged is not a good basis for a competitive market. Companies that do register their products are in effect disadvantaged for investing and being honest.

    The additional issue of the more excessive your claim the greater your ability to claim it as mere puffery has no role in healthcare or any industry here that puffery relates to product performance.

    Any product, including foods, that make a health claim should submit the documentation or be able to provide it to whoever and whenever it is requested and challenged.

    If this is too onerous then potentially create blanket claims that supported and define what formulations can make those claims. These claims could then be challenged as group that than specific product by product.

    report
  6. Edward John Fearn

    Edward John Fearn is a Friend of The Conversation.

    Hypnotherapist and Naturopath

    Aside from the ethics of depleting Krill supplies and its significance to the entire marine ecosystem. (Which is an extremely valid argument). The comparison to snake oil seems a bit over the top.
    I am personally far more interested in whether a product works or not, rather than how it is advertised.

    Regarding Krill oil although more research is needed, what has been produced so far looks promising on a number of fronts. Take the following study showing reductions in pain and CRP levels in…

    Read more
    1. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Edward John Fearn

      As a regular slurper of cod liver oil and shark cartilage I'd be the last to dismiss out of hand the potential benefits of anything fishy, Edward. And to be honest there's probably a decent argument that even if people only find a psychosomatic benefit then what's the harm?

      The risk comes in with the "marketing" of unproven medicines... the claims that are made from the tautological absurd "wild krill" to the outrageous assertions regarding deer antler and tiger's penis. Of selling false hope and expectations.

      At what point does absurd sloganeering become sinister? Only when it makes promises it cannot keep? Or is there also a falsity - a sales angle, in my cod liver oil tickled from the innards of happy cod? Another false hope and expectation.

      It's a slippery slope I reckon.

      report
  7. Graeme Harris

    Director

    Point c) was that omega 3 derived from flax seed seemed to be far less effective in decreasing the High Sensitive CRP than marine derived omega 3.

    report
  8. Justin Case

    Gardener

    Seems like a pretty poor attempt at fear mongering here again.
    Notwithstanding the obvious problems with depletions of krill from the oceans. Which seems a situation that is almost an inevitablity with so many mercenary humans inhabiting this planet.

    So we have a few spiteful and unscientific quips about snake oil and some people here think they're smart or something.

    Is this article about krill, or is an article that attempts to use the circumstances of a specific situation to suggest that…

    Read more
    1. Peter Ormonde

      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Justin Case

      Thanks for sharing there "Justin".

      Got some specifics of these "largely unscientific, abusive and derogatory campaigns at a few sites such as this one" at all ... purely in the spirit of quoting some evidence before venturing opinions and assertions, along the lines you suggest above.

      Some quotes or links please.

      report
    2. Dan Abrahmsen

      Public Servant

      In reply to Justin Case

      Think you might be shooting a bit wide of the mark there Tex. Not sure if you made it all the way through the article before commenting but there's this little line, just above the last two paragraphs that tells us what the author was getting at...

      "What does the case tell us about regulation rather than specific products?"

      The next two paragraphs then go on to explain that we need to take a look at the way therapeutics are regulated and the resources available to the regulators.

      Krill oil and its benefits or otherwise is an example, a prop used to set the scene if you will.

      report
    3. Dianna Arthur

      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Justin Case

      In discussions, teaching or debate; examples, theories and indeed even parody are used to elaborate and inform the topic.

      Krill just happens to hit all the points raised in the article:

      1. It is environmentally sensitive
      2. Unsustainable
      3. Not scientifically tested but now on market
      4. There are equally effective alternatives already available

      Krill has been accepted by both public and educated medics despite all of the above.

      I can't prove this but suspect a paper trail can be found leading the manufacturers/distributors back to Big Corpa (or Pharma if you will).

      Does anyone really believe that the various 'Nature's Own/Way/Path' - are independent companies only concerned with healing the populace?

      report
  9. Arthur James Egleton Robey

    Industrial Electrician

    It is commonly assumed that all pharmaceuticals have undergone rigorous double blind testing. Only 30% of standard procedures have. (No reference provided)
    I would be surprised if vitamin C's effectiveness on Scurvy has been double blind tested. Does anyone doubt that vitamin C cures scurvy?

    One of the ways that Big Pharma locks others out of the market is by pushing the need for multi-million dollar tests. If I discovered by accident a cure for schizophrenia what would the chances of me benefiting…

    Read more
    1. Dan Abrahmsen

      Public Servant

      In reply to Arthur James Egleton Robey

      Vitamin C may not have undergone double blinded testing but it did undergo a clinical trial of sorts, read up on Thomas Lind and the trials he conducted in 1747 and 1753.

      Big pharma doesn't push the need for multi million dollar tests, the regulators such as the TGA here and the FDA in the US do. If big pharma could get away with putting a drug to market without rigorous testing it would. We insist on double blind, randomised, placebo controlled clinical trials involving a high number of subjects…

      Read more
    2. Arthur James Egleton Robey

      Industrial Electrician

      In reply to Dan Abrahmsen

      I am seriously saying that the goals of Big Pharma are not aligned with the goals of good medicine.

      Please read "Mad in America"
      http://www.amazon.com/Mad-America-Medicine-Enduring-Mistreatment/dp/0465020143/ref=sr_1_1?ie=UTF8&qid=1340721278&sr=8-1keywords=Mad+in+America
      By Robert Whitacre to understand the gross evil of the medicalisation of insanity.

      My brilliant cousin was killed by the "Side effects" of his medication. And now they are practising the same alchemy on my daughter. I anticipate the same result.

      Double blind is a good term. Stick with it.

      report
    3. Dan Abrahmsen

      Public Servant

      In reply to Arthur James Egleton Robey

      Well, someone close to me was diagnosed with paranoid schizophrenia including aural hallucinations after a psychotic episode, he is now fairly heavily medicated and will probably remain so for the rest of his life. He is now symptom free and is back to his old self.

      While I'm sorry to hear about your cousin, she and my example are what is termed anecdotal evidence. You have had a bad experience associated with mental illness and medication and are blaming the medication and the pharmaceutical companies that produce them. Your one bad experience does not overturn the evidence of efficacy and safety that was gathered before the drug came to market or that gathered since the drug came to market. Research on a drug doesn't just stop once they're on the shelf in your local pharmacy.

      What would be the consequences should your daughter cease her medication?

      report
  10. Wanda Buster

    Natural Health Physician

    I think you are wrong Justin Case, Krill oil have been tested and one of the most popular source of astaxanthin in USA today, Have you read all about it from Dr. Joseph Mercola and how his investigation about the effectiveness of Krill oil is?

    Read it at http://krilloil.mercola.com/krill-oil.html

    He discussed how krill oil have been tested and you can see how good it is as natural source of astaxanthin without contamination and how much people needs it. It also tackles why is more practical than fish oil.

    report
    1. Dianna Arthur

      Dianna Arthur is a Friend of The Conversation.

      Environmentalist

      In reply to Wanda Buster

      We can produce effective omega fatty acids without raiding our already threatened marine ecologies of krill.

      http://www.pnas.org/content/108/18/7625.full

      Krill-oil is hardly practical given the rate we are impacting our environment at present to introduce yet another exploitative practice of the planet's ecosystem.

      Just for the record I have fibromyalgia and suffer extreme joint and muscle pain every day and cope by using renewable sources such as flax seed. Maybe it is not as efficient, but then my conscience is a little clearer.

      report