Tag Archives: Australian Consumer Law

Government decision not to ban homeopathy sales from pharmacies is a mistake

The Conversation

File 20180508 46356 1fu8iho.jpg?ixlib=rb 1.1
Evidence homeopathy works is pretty clear: it doesn’t. From http://www.shutterstock.com

Bruce Baer Arnold, University of Canberra

Last year a review into pharmacy in Australia recommended homeopathic products be banned from sale in chemist shops across the country. This was a sensible recommendation, given pharmacists are trusted scientists in the community and science tells us homeopathic products simply don’t work.

In the government’s recent response to this review they “noted” the concerns of the reviewer, and have chosen not to adopt it. Here’s why that is a mistake.

What is homeopathy?

Homeopathy involves extreme dilution of a compound that is claimed to be therapeutically effective, and uses the concept of “like cures like”. For example a fever might be treated with a compound used to induce fevers, in the belief the diluted active ingredient will have the opposite effect and cure the fever.

Products tend to contain the equivalent active ingredient to a single molecule within an Olympic-size swimming pool. Practitioners of fact-based medicine have understandably indicated that any effect of the product could only be attributable to the placebo effect (it works because you believe it works) or because the product contains alcohol or a similar base.


Read more:
No evidence homeopathy is effective: NHMRC review


Most pharmacists probably abhor such treatments lacking evidence, given they go through years of rigorous university training, are heavily regulated and have a strong professional ethic. But it makes the cash registers clang.

These days pharmacies also sell jelly beans, lipstick, energy bars, vitamins, teddy bears and sunglasses – as well as prescription medications. This, unfortunately, is business practice.


Read more:
Discount chemists are cheapening the quality of pharmacy along with the price


Pharmacists are trusted scientists. From http://www.shutterstock.com

Business v health care

Pharmacies have a special status as businesses, along with many actors in the health system. Successive governments have grappled with tensions around service delivery, standards and competition.

They’ve also had to grapple with a very strong industry body, the Pharmacy Guild (stronger than the Pharmaceutical Society). Much of the review reflects agreement between them. In responding to the review the government has flicked the homeopathic hot potato to pharmacy owners:

Professional standards have been designed for use by individual pharmacists to assess their own professional practice. They are intended to serve as guidance for desired standards of practice. However, it is the sole responsibility of the individual pharmacist to determine, in all circumstances, whether a higher standard is required. It is equally their responsibility to meet that standard and ensure that consumers are provided with the best available information about the current evidence for, or lack-of efficacy in, offered treatments and therapies.

So given the government has not banned homeopathic products from pharmacies, we could hope for restriction under Australian Consumer Law. They can, for example, prohibit sale of products that lack the purported constituents or qualities. But this has yet to happen with homeopathy, as it’s considered misleading but harmless.

The government is putting the onus on consumers to ask the pharmacist “does this work?”, and only the exceptional customer will ask.

If consumers wish to purchase therapies without a proven effect, they should be able to do so from venues that sell incense sticks and similar “wellness” paraphernalia.

They should not be available for sale in an industry necessarily regulated by government and trusted by the community.

It’s time for the Guild and Society to take a stand and reject sale by their members of products that by definition do not work. If pharmacies want status, they have to skip the junk products dollar. The government should help.


The ConversationRead more:
Pharmacists are trusted medical professionals, so they shouldn’t sell remedies that lack evidence


Bruce Baer Arnold, Assistant Professor, School of Law, University of Canberra

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.

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Poker machines and the law: when is a win not a win?

The Conversation

Cristy Clark

If I took all of the money out of your wallet, you’d probably feel as though you’d lost something – wouldn’t you? Now imagine instead that I only took 80% of your money. Would you feel as though you had “won” the remaining 20%?

What if I tried to convince you that you had actually benefited from this transaction by playing happy music and letting off a few firecrackers?

This thought experiment might help you to get your head around a proposed legal action by law firm Maurice Blackburn that plans to use Australian consumer law to argue that poker machine operators are engaging in misleading and deceptive conduct to entice gamblers into using poker machines.

Misleading and deceptive conduct is prohibited by Section 18 of the Australian Consumer Law. The central test for this is whether the conduct is likely to mislead or deceive consumers having regard to all the circumstances. To apply this test, you need to identity both the “conduct” and the “relevant class of consumers”.

In this particular case, the class of consumers might be “gamblers”. Or, it might focus more specifically on “novice gamblers” or “problem gamblers”.

Maurice Blackburn seems to have identified a range of potential conduct that it would like to target in its action. One that particularly stands out is the technique known as “losses disguised as wins”. This is where a poker machine enables players to bet on more than one line and a minor win on one of these lines sets off a graphics and sound display that indicates a “win” when, in fact, the player has lost most of their money.

Applying the law to poker machines

The nice thing about consumer law is that it relies on fairly common-sense questions. So, the court would basically ask: if a poker machine displays a series of flashing symbols and music associated with winning and makes a chiming sound indicating that it is counting up winnings, would an ordinary and reasonable (novice) gambler be misled or deceived into thinking that they had won something despite having actually lost money?

Further inquiries or closer attention to detail that could enable a person to discover their error is not particularly relevant to this test. Also, the literal truth can be legally misleading, because the law recognises that humans do not behave rationally and tend to form an opinion in response to their overall impression of conduct.

In this case, for example, it might be argued that gamblers pay more attention to the flashing symbols and music than they do to their credit balance.

Previous cases give some idea of how the courts have applied this test. In ACCC v TPG Internet in 2013, the High Court found that TPG Internet had misled consumers by advertising “Unlimited ADSL2+ for $29.95 per month” when this price was available only to customers who bundled broadband with a home phone service.

The important detail was that TPG’s advertisements actually contained an explanation of this condition, but it was displayed less prominently than the advertised deal.

The High Court found that the attention given to advertising material by an ordinary and reasonable person may well be “perfunctory” and, therefore, many will only absorb the “general thrust”. The court also emphasised that it was enough if consumers were sufficiently misled to engage further with the company, even if they subsequently understood the true nature of the offer and chose not to purchase anything.

The TPG case was followed by the Federal Court in ACCC v Coles Supermarkets in 2014. In this case, the Australian Competition and Consumer Commission (ACCC) successfully alleged that Coles had misled consumers by advertising its reheated frozen par-baked bread with the words, “baked today, sold today” and “freshly baked”. This finding was made despite par-baked bread being able to be truthfully described as having been “baked”, and that Coles had detailed its par-baking method on its website.

Once again, the court emphasised the importance of considering both the context and the dominant message of the conduct.

Forming an argument

So, how could Maurice Blackburn possibly prove that gamblers might be misled by the “losses disguised as wins” technique?

It might draw on recent Canadian research which found that the flashing symbols and music that accompany “losses disguised as wins” trigger similar arousal levels in novice gamblers as real wins do – and that arousal is a key reinforcer in gambling behaviour.

In short, research seems to have demonstrated that novice gamblers do pay more attention to flashing symbols and music than they do to their credit balance. Perhaps unsurprisingly, these bright, loud messages appear to dominate.

The ConversationCristy Clark, Lecturer in Law

This article was originally published on The Conversation. (Reblogged by permission). Read the original article.
 

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