In April 2012 Swisse made the following offer to GPs, “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”.

The offer raised a number of concerns.

First, it contained a financial inducement to doctors to specifically recommend the products of a particular company. What’s more, encouraging doctors to “on-sell” products to patients (presumably at a lucrative mark-up) runs the risk of encourage unnecessary or inappropriate prescribing. It also violates the traditional (and ethical) separation of prescribing from dispensing.

Third, this promotion appears to violate Section 9.12 of Medicines Australia 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. Instead, the company is a member of the Complementary Health Care Council of Australia (CHC). Neither the existing 2005 CHC Code nor its initial 2012 “consultation draft” contains a clause similar to that in Medicines Australia code.

But the 2005 code does contain a clause (4.1.1) that states, “Members should not engage in any unfair or unconscionable conduct or commercial practice”.

Accordingly, on April 18 2012, I submitted a complaint to the CHC arguing that the Swisse promotion subjected doctors to “undue influence, pressure or unfair tactics” especially when such conduct is not allowed by Medicines Australia code. I also asked the CHC to add Medicines Australia Code S 9.12 to the consultation draft of their new code and increase the maximum penalties available from $20,000 to $200,000.

On August 28 2012, I received the determination of the CHC Complaints Resolution Committee. The Committee found that the offer of a $675 gift did not constitute “undue influence, pressure or unfair tactics”. It acknowledged the value of education in allowing doctors to confidently and appropriately integrate nutritional and herbal medicines into their practice. The committee went on to say, “However, the offer of a valuable consideration as an inducement to stock a product range does not fit within the spirit of the Code of Practice”. No penalty or sanction was applied.

The new consultation draft of the CHC Code (July 2012) was recently published for comment. As requested, it has the exact words from the Medicines Australia code of conduct as a new section (8.14.1). And it has raised the maximum fine available for code breaches to $40,000.

The draft also suggests increasing transparency by stating the outcomes of all complaints received will be published on the CHC website as and when complaints are finalised (currently, only summary details are published in the CHC annual report). It has incorporated some, but not all, of the high-level principles contained in the report of the government’s Working Group on Promotion of Therapeutic Products, which was tasked with aligning self-regulatory codes of conduct.

But the latest CHC consultation draft code has left out the following high-level statement of principle that the working group recommended be included in all therapeutic industry codes:

“The Australian therapeutic products industry promotes the concept of good health incorporating the quality use of therapeutic products which is based on genuine consumer health needs and supported by the ethical conduct of all parties. The quality use of therapeutic products means: selecting diagnostic and treatment options wisely based on the best available evidence and the consumer’s needs; choosing suitable therapeutic products if this is considered necessary, and using therapeutic products safely and effectively.”

Critics argue that the complementary medicines industry produces many products that don’t meet genuine consumer health needs and are not promoted in accordance with quality use of medicines principles. So it’s important to ensure that the working group’s statement is incorporated in the next draft of the CHC code.

The CHC consultation draft code states (Section 4.4), “Non-members will be invited to submit to the Code’s processes if a complaint is received, with refusal of this invitation resulting in the complaint being referred to the relevant Government authority e.g. TGA, ACCC, NSW Food Safety Authority”.

While this may be appropriate for complaints about promotion to consumers, it does nothing to resolve complaints about promotion to health professionals by non-members. The government (and the TGA) continues to insist that these must be dealt with by self-regulation. But self-regulation can only work if the government adopts the recommendation of their working group that compliance with a self-regulatory code must be made a condition of TGA marketing approval. Otherwise there’s no inducement for bodies such as CHC and Medicines Australia to ensure self-regulation is not simply self-serving.