Swisse cheese: there are too many holes in complementary medicine regulations already

Imagine, if you would, a company in a pre-budget submission demanding diplomatic assistance from their government to help them sell product overseas. Fair enough, you might say. If you don’t ask you won’t get.

Now imagine that company was one that sold products in an industry so notoriously shonky that when the Australian National Audit Office did an investigation, they concluded its supposed regulatory agency:

has been aware that regulatory compliance has been poor since at least 2007.

Oh, and that was back in August 2011. Things haven’t improved much since then.

Add to that the fact that the company demanding diplomatic representation overseas has a history of multiple findings of regulatory breaches within Australia.

I know it’s stretching the bounds of imagination, but try also to picture this company lobbying aggressively to be removed from the restrictions imposed on advertising and selling health products by the Therapeutic Goods Act 1989. They want to be free to create and market products which are inherently unfit for their advertised purpose and they don’t want red tape (otherwise known as consumer protection laws) getting in the way.

Enter this week’s effort by the supplement manufacturer Swisse. They’ve done exactly what I was outlining above. To me, and others who watch this wretched industry closely, this looks like an unprecedented effort to gull the Australian public of its legal protections.

With a TGA so weak as to be ignored with impunity, they feel confident enough to publicly claim the economic benefits of selling useless products to misguided consumers outweigh the erosion of our right to be told the truth in advertising and our absolute right to have a higher standard for health-related claims in advertising compared to other industries.

Swisse is by no means the only vitamin company to have issues with truth in advertising. Blackmores is another Australian brand with overseas ambitions. They are pushing into the enormous Chinese supplement market, and apparently not letting trivial things like fines for false advertising get in the way of a surging share price.

The essential problem here for manufacturers is that they simply HAVE to mislead to sell their product, and our therapeutic claims regulatory code inconveniently forbids this. All the talk about TGA reform and economic benefits and so on is deliberate obfuscation to misdirect the conversation away from the fact that there is no scientific reason to claim that these heavily-hyped products do anything they claim they can. Absent fundamental scientific credibility, the options they have are threefold.

  1. Business as usual. Ignore the regulations and treat legal action to defend against reported breaches as a cost of doing business. This is cheap and effective, especially in an industry where the credibility of the players is so low as to be incapable of worsening. It does however discourage really big mainstream acceptance and political patronage that is necessary to go from a family-owned medium sized business to a global multi-national.

  2. Try to create some research that looks enough like science to be technically claimable as such. It will never be scientifically acceptable but you can fool lots of the consumers and perhaps some of the regulatory bodies with it. If you’re lucky you might also get some misguided health professionals on board. Swisse has tried this approach, with its controversial partnerships with Latrobe University and the ABC seemingly designed to create the appearance of respectable research being done. Blackmores has its Blackmores Institute and sponsorship of a Research Centre at Southern Cross University in Queensland.

  3. Go bold and strive to get rid of the regulations altogether. This is the thrust of the current submission. Even the withered embrace of the TGA has become too restrictive for the vitamin industry and it would appear they have judged the time propitious for a stab at rolling back the consumer protections enshrined in the current law.

Far from the implied claim that vitamins represent such an important industry they should be represented in every Australian embassy in the national interest, I would say the opposite is true. I would go as far as to say that this is an industry built on monetising the insecurities, delusions and outright ignorance of consumers.

I for one wouldn’t miss it at all if it was outlawed altogether.

Update: an earlier version of the article contained an incorrect reference to Mr Marcus Blackmore for which we apologise.

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