Tag Archives: misleading conduct

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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2014, a Bad Year for Homoeopathy

The Conversation
By Ian Musgrave

This has been a bad year for homoeopathy, first there was the Draft Information Paper on Homoeopathy from the NHMRC, which concluded there was no reliable evidence for the use of homoeopathy in the treatment of the 61 health conditions looked at. Then a homoeopathic remedy manufacturer left the North American market due to law suites over the ineffectiveness of their products, then the Federal Court has found that Homeopathy Plus! was engaged in misleading conduct over its homoeopathic “vaccines”

Quoting from the ACCC website “…[Homeopathy Plus!] engaged in misleading and deceptive conduct and made false and misleading representations to the effect that there was an adequate foundation in medical science for the statement that homoeopathic treatments are a safe and effective alternative to the whooping cough vaccine, when in fact no such foundation exists..”

However, this is not a one-way street. Complementary Medicines Australia has claimed, 6 months after the public consultation process had closed, that the NHMRC process was flawed. In the august publication Food Navigator Asia it was claimed to be “fatally flawed”.

What coffee diluted homeopathically looks like. Ian Musgrave

Before we examine these claims, let me remind you that homoeopathy is based on two principles “like cures like” and extreme dilution, in most cases to levels so dilute that there is almost no chance of a single remaining molecule of original compound being present in the remedy. Thus caffeine diluted 1 in a hundred 30 times is used to treat insomnia and Uranium nitrate diluted 1 in a hundred 30 times is used to treat diabetes.

In the latter case it is fortunate at no uranium will actually be present, as uranium nitrate causes kidney failure. In uranium nitrate-induced kidney failure some glucose turns up in the urine, as the kidneys ability to reabsorb it is damaged. This is completely unlike what happens in diabetes, where high blood glucose overwhelms the kidneys capacity to reabsorb it (in uranium nitrate toxicity blood glucose is not elevated so it is not “like” diabetes at all). Thus the rationale for homoeopathic treatment is flawed at many levels.

But back to the draft report of the NHMRC’s review of homoeopathy. This represents the largest and most extensive recent review of homoeopathy research. The review looked at both systematic reviews of the use of homoeopathy in 61 heath conditions and submissions on behalf of interested parties, which contained a mix of systematic reviews and individual randomised controlled trials. All submissions and papers were carefully evaluated against strict criteria recognised internationally for this type of review. The Australasian Cochrane Centre independently reviewed the overview report to ensure that it was valid and high quality.

To remind you, the review found there was no good evidence that homeopathy was effective for any of the 61 medical conditions considered. In some cases, there was clear evidence that homoeopathy was ineffective; in others the evidence base was too weak to give a clear result. These findings are in concert with other large reviews of homoeopathy. Let’s look at the claimed “flaws”.

There was no adequate explanation of why randomised controlled trials (RCTs) were excluded.

They were not excluded. The main review focused on systematic reviews, which included randomised controlled trials (and other types of high level evidence). This is the best way to compare multiple studies. Randomised controlled trials are considered the highest level of evidence, but the results of a single randomised controlled trial may be misleading for many reasons.

Chance is one, if a therapy has no actual effect,by chance alone you will find some studies that appear to show an effect.

Thus it is far better to compare as many high quality trials as possible to get a clearer picture. Randomised trials were not excluded, but an integral part of the evidence through systematic reviews. Randomised controlled trials submitted by stakeholders that were not already part of systematic reviews were considered as well.

While there are limitations to this approach (specifically the most recent research may be excluded), it is widely used in making clinical decisions and in no way invalidates the findings of the report. One of the biggest limitations is that negative findings tend to be under-reported, so that systematic reviews tend to overestimate the effectiveness of a therapy. That homoeopathy cannot pass muster under these conditions is telling.

Three academics invited to comment on the review all broadly agreed there was no high quality evidence recommending homoeopathy for any disorder.

The review excluded too many studies.

Of the 1367 publications considered in the main review, only 60 were finally considered. Not because of anything sinister, but because only those met the review criteria. 374 were duplicate citations, 729 were the wrong study type (not peer-reveiwed, not systematic reviews or metaanalyses, or not looking at controlled trials or high level evidence) or were not looking at the conditions considered in the review or did not report the outcomes (etc. etc.) (see the main review for details).

Of the reports submitted by stakeholders, only a few passed the inclusion criteria or were not already included. Pro tip, if the NHMRC asks you for peer-reviewed systematic reviews and randomised controlled trials in humans, don’t submit books on the life of Hahneman and studies of frogs exposed to thyroxine (yes, I went through the papers).

The review did not consider any publication not in English.

While this excludes some studies, most high quality studies are published in the English language press. As well, the practicalities of translating foreign language papers to ensure there are no complicating errors in translation are avoided. Overall, the impact of this decision on the reliability of the report is marginal at best.

The NHMRC had not appointed a homeopathic expert to the panel.

Assoc Prof Evelin Tiralongo on the NHMRC panel is trained in homeopathic remedies.

The review did not consider animal studies.

These homoeopathic preparations are already in use in humans, so the appropriate studies are ones in humans in the first place. As well, the studies in animals suffer the same flaws as those in humans, too many are of poor quality and many are unable to be interpreted or make claims that cannot be supported. For example, one study submitted to the review that claimed to demonstrate that homoeopathic treatments kill breast cancer cells actually shows that the ethanol diluent is the lethal factor.


Overall, while there are some limitations to the study, this is a wide ranging, carefully interpreted study. While overall the broad conclusion is that there is no good evidence the homoeopathy being effective in the 61 studied conditions, in at least 13 studies there was good evidence that homoeopathy was ineffective (asthma for example). The results of this study are in broad agreement with previous studies of homoeopathy (see also this, and before you bring up the “Swiss Report” see here and here).

The NHMRC study conclusion that “…the assessment of the evidence from research in humans does not show that homeopathy is effective for treating the range of health conditions considered” cannot be ignored or dismissed.

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

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