Swisse Vitamins highlights the failure of industry self-regulation

Encouraging GPs to “on-sell” products to patients is likely to produce unnecessary or inappropriate prescribing. fuzzirella/Flickr

Swisse Vitamins Pty Ltd has been in the news recently over their Federal Court action to suppress a determination of the Therapeutic Goods Advertising Complaint Resolution Panel (CRP) about a number of their products. And now a new marketing campaign by the company has highlighted the limitations of the complementary medicines industry’s self-regulation.

After investigating several complaints, the CRP found the promotion of a number of Swisse products was misleading, had not been verified or raised unwarranted expectations.

The CRP requested Swisse pull promotion that claimed certain products were “clinically proven” or “independently tested”, as well as its “Tired? Stressed? You’ll feel better on Swisse” tagline. The matter is currently awaiting judgement while the CRP determination remains suppressed.

Yesterday, Swisse caused more controversy by sending an e-mail to subscribers of an online GP educational service (ThinkGP) offering the Swisse Practitioner range of premium quality vitamins, minerals, antioxidants and herbs.

The e-mail noted, “Swisse Practitioner has been specifically created for, and is exclusive to practitioners. Incorporating Swisse’s high-quality formulas, the ingredients used have been carefully selected based on clinical, scientific and traditional evidence. Upon your recommendation, patients can only purchase Swisse Practitioner online or via your practice should you choose to on-sell.”

It went on to say, “For those who on-sell full sized Swisse Practitioner products, Swisse will sponsor the full cost for you or one of your staff members to complete an online course in Health and Complementary Medicine by the National Institute of Integrative Medicine (NIIM), valued at $675”.

Why the controversy? First of all, this offer contained a $675 financial inducement to encourage general practitioners to specifically recommend the products of a particular company. Second, encouraging GPs to “on-sell” products to patients (presumably at a lucrative mark-up) runs the risk of encouraging unnecessary or inappropriate prescribing. It also violates the traditional (read ethical) separation of prescribing from dispensing.

This promotion would clearly violate section 9.12: of Medicines Australia’s self-regulatory code of conduct, which says, “No gift, benefit in kind or pecuniary advantage shall be offered or given to healthcare professionals or to administrative staff as an inducement to recommend, prescribe, dispense or administer a Company’s product(s)”.

But Swisse is not a member of Medicines Australia, the industry body for pharmaceutical companies. They’re a member of the Complementary Health Care Council of Australia (CHC).

Neither the existing CHC code of practice for marketing nor their latest “consultation draft code” contains a clause resembling the one in Medicines Australia code.

This highlights the problem that the Australian government’s Working Group on Promotion of Therapeutic Products (of which I am a member) was set up to resolve.

The relationship between health-care professionals and therapeutic goods companies is governed by industry and professional codes of conduct or practice rather than by government regulation. Current codes vary in their definitions, member obligations, scope of application, enforcement and penalties.

The Working Group recommended that each therapeutic industry sector code include provisions addressing a number of common operational areas, such as gifts and offers like the one Swisse is making. We specifically noted that promotional activities should not offer inappropriate inducements.

It also raises interesting questions about why the consultation draft of CHC’s code, which is meant to take into account the Working Party’s recommendations, leaves out any mention of inappropriate inducements. And why Swisse is offering them.

The CHC code’s section 4.1.1 merely says: “Members should not engage in any unfair or unconscionable conduct or commercial practice”.

The Australian Competition and Consumer Commission (ACCC) has a guideline on unconscionable conduct that states it can involve the use of “undue influence, pressure or unfair tactics”.

I have submitted a complaint to the CHC arguing that the Swisse offer of a $675 online course for practitioners who on-sell Swisse Practitioner products subjects practitioners to “undue influence, pressure or unfair tactics”. It’s especially significant because such conduct is not allowed by Medicines Australia’s code.

Encouraging GPs to “on-sell” products to patients is likely to produce unnecessary or inappropriate prescribing. And that it violates the ethical separation of prescribing from dispensing.

The Complaint Resolution Committee of the CHC should determine whether Swisse have breached section 4.1.1 of their code of practice. If the committee finds this is so, Swisse should be required to send an e-mail retracting their offer to all practitioners who received the original e-mail, explaining the retraction is because of a CHC code breach.

What’s more, Swisse should be fined the maximum amount applicable ($20,000) and the determination be published on the CHC website. The CHC should add a section to their code of practice forbidding inducements, reflecting Medicines Australia’s effort, and increase the maximum penalties available from $20,000 to at least $200,000.

News about companies offering inducements can erode consumer trust (and rightly so) in both the company and the practitioners who suggest their products. It’s only when industry bodies can make and police stricter rules that self-regulation can be said to be a success.