11 January 2019

The Complementary Medicine Taskforce: A Homeopathic Consultation?

Homeopathic products purport to cure a range of general of specific ills through pills, potions, linaments and other 'medications' in which the claimed active ingredient is undetectable. The Commonwealth appears to have adopted a homeopathy model for consultation about labelling of complementary medicine products: consultation is being done quickly, privately, without public engagement with consumers or independent health experts and potentially without much benefit for consumers.

Last month the national Minister for Industry, Science and Technology, Karen Andrews, announced the Complementary Medicine Taskforce: a review of "the impact of recent consumer law changes on the complementary healthcare sector".

The announcement is pitched as helping to meet consumer demand for more information on where products are made, after changes to the Australian Consumer Law and Country of Origin Labelling requirements last year.

After controversy last year about adulteration and labelling of products such as honey ('Australian' honey apparently doesn't have to have much material from Australian bees and indeed not to have much honey as distinct from beet/cane syrup) and fish oil you might expect that the review is concerned with looking after consumers. Apparently not; it's concerned with exports (typically by overseas-owned groups).

The announcement states
 "The Morrison Government is committed to helping local industry tap into our export markets, and ensuring our business community has opportunities to sell more products overseas," Minister Andrews said. 
"We’re helping Australian businesses sell more of their high-quality products and services to overseas consumers, helping these businesses expand and employ more staff, driving economic growth." 
"The Morrison Government has heard the strong industry representations on this issue, and this Taskforce will assist our manufacturers by enabling further consideration and assessment of industry concerns." 
The law change has led to some complementary healthcare producers no longer being able to claim their product is made in Australia or carry the Australian Made, Australian Grown logo. This logo is widely recognised in export markets and promotes Australian high-quality products. 
Minister Andrews said it’s important for all industry stakeholders and consumer groups to understand "Made in Australia" and use of the logo. 
"The Taskforce will examine the impact of changes to Country of Origin Labelling laws on manufacturers of vitamins, minerals and supplements and their origin claims," Minister Andrews said. 
"The complementary healthcare sector in particular is an important and growing contributor to our economic prosperity. The industry employs around 29,000 people and estimates show that exports currently exceed $1.2 billion. "We are proud of the quality of Australian made products and want to ensure the regulatory environment facilitates these products being exported into global markets."
The industry is of course also a major donor to political parties and affiliates.

The announcement states that the taskforce is expected to report to government in early 2019.

The review's Terms of Reference apparently have not been released publicly.

They appear to be as follows, noting rebadging of the review as the "Complementary Healthcare Sector Country of Origin Labelling (CoOL) Taskforce
1. Background 
The purpose of the Complementary Healthcare Sector Country of Origin Labelling (CoOL) Taskforce (the Taskforce) is to examine concerns raised by the Complementary Healthcare Sector (the Sector) about changes to the use of the ‘Australian Made, Australian Grown’ (AMAG) logo, and investigate options that may address these concerns while maintaining consumer confidence in the authenticity of ‘Made in Australia’ claims. 
The Sector reports that a rapid increase in international sales of vitamins, minerals and supplements has led to greater domestic investment and job creation. The Sector has identified that claiming Australian origin and using the AMAG logo is a key marketing advantage when selling into both domestic and export markets. 
The overall sector revenue is reported by industry as $4.9 billion in 2017 across 82 Australian-based manufacturers. Industry representatives say that if a significant reduction in sales occurs in export markets, impacts could include reduced employment and growth in the sector. 
The AMAG logo is licensed to industry by Australian Made Campaign Limited (AMCL) in accordance with the Deed of Assignment between the Commonwealth of Australia and AMCL and the AMAG Logo Code of Practice (certified trade mark rules). The AMAG logo can only be licensed for products that are consistent with Australian Consumer Law (ACL) safe harbour defences. 
The February 2017 changes to the substantial transformation test under the ACL, meant for claims of ‘Made in Australia’ to qualify for the relevant ACL safe harbour defences, a new product with imported ingredients needs to be fundamentally different in identity, nature or essential character from the imported ingredients. 
The Australian Competition and Consumer Commission’s (ACCC) guide to the Sector in March 2018 outlined a number of production scenarios that the ACCC considers likely to either meet or not meet safe harbour defences. The Sector is concerned that many of its products will not meet the ACCC’s interpretation of substantial transformation and therefore will not be allowed to use the AMAG logo. 
2. Purpose 
The Taskforce will consider and assess reported impacts on the Sector of the changes to the substantial transformation test under the ACL. Both industry and consumer interests will be considered in this process. 
3. Scope 
The Taskforce shall:
1. Assess how the current CoOL policy framework, including ACCC guidance regarding the substantial transformation test, interacts with the complementary healthcare sector. This shall include reporting on industry concerns about how this policy and guidance may be impacting upon business decisions within both the Sector, and AMCL in licensing use of the AMAG logo. 
2. Assess the commercial impacts of the current substantial transformation test under the ACL on the complementary healthcare sector regarding products generally referred to as vitamins, minerals and supplements. 
3. Assess Australian consumer expectations relating to suggested changes by the Sector regarding rules governing the use of the AMAG logo. This will include consideration of impacts on consumer choices in purchasing products, and the need to protect and ensure the integrity of Australian made claims and the AMAG logo. 
4. Give consideration to broader market or industry impacts regarding CoOL and AMAG logo use beyond the complementary healthcare sector. 
5. Identify appropriate next steps for responding to the Sector’s concerns 
4. Membership 
The Taskforce will comprise representatives from the:
1. Department of Industry, Innovation and Science; 
2. Department of the Prime Minister and Cabinet; 
3. Treasury; 
4. Department of Foreign Affairs and Trade/ AusTrade; 
5. Department of Agriculture and Water Resources; 
6. Therapeutic Goods Administration; 
7. Department of Health; and 
8. Australian Competition and Consumer Commission. 
In conducting its activities the Taskforce will consult with:
- Relevant State Government agencies; 
- Complementary Medicines Australia; 
- manufacturers within the complementary healthcare sector; 
- other industry stakeholders with an interest in ‘Made in Australia’ claims 
- consumer organisations; 
- Australia Made Campaign Ltd; and 
- other agencies and/or stakeholders as required. 
5. Operations 
The Taskforce:
1. Will meet as required. If required, members can ask the chair to hold additional meetings, providing at least two weeks’ notice is given. 
2. Will meet via teleconference with the option to meet in person if appropriate. Members may (on agreement with the Chair) undertake work out-of-session to inform and support the deliberations of the Taskforce. 
The Department of Industry will provide the Chair and Secretariat for the Taskforce. 
Members will contribute professional knowledge and expertise to discussions of the Taskforce. 
Members may be requested to contribute data to establish an evidence base for the Taskforce to consider options. 
Some sales, employment or marketing data (or other commercial information) relevant to Taskforce deliberations may be commercial-in-confidence. The Taskforce will seek advice as appropriate to manage the confidentiality of data provided to the group. 
The Taskforce may draw upon the expertise of non-members to inform the discussions of the group on an ad-hoc basis. The Chair will consider and approve such requests. The Chair will consider for approval requests for the attendance of non-members (outside of the Secretariat) at Taskforce meetings. 
6. Deliverables 
The Taskforce shall provide Government with a report addressing each of the issues identified for examination within scope for the Taskforce. The Taskforce will provide advice to Government by the end February 2019. 
7. Review and reporting 
Members of the Taskforce will have scope to review and comment on the final report. The final report will be delivered to the Minister for the Department of Industry, Innovation and Science and the Assistant Treasurer.
What we have here is a review with no commitment to releasing a report on a timely basis, bearing in mind the Government's recalcitrance in the face of releasing the report of the review of pharmaceuticals a few years ago. We might hope that Government's stated commitment to 'Open Government' is given effect through early release of the report and details of the concerns voiced by the sector

It is a review that is weighted towards industry; consumer advocates and other health advocates appear as an afterthought, particularly given
  • the limited publicity about the review 
  • non-release of the Terms of Reference 
  • non-release of indications of how advocates can engage with the review). 
We might be asking a more challenging question: should governments be encouraging domestic and overseas consumption of products that are often expensive, therapeutically unnecessary but replete with the puffery that delights consumer law scholars and attracts attention from the ACCC. Some examples are here,  here and here.

Among the literature see  'Commercialism, choice and consumer protection: regulation of complementary medicines in Australia' by Harvey, Korczak, Marron and Newgreen in (2008) 188(1) Medical Journal of Australia 21-25, Vitamania: Vitamins in American Culture (New Jersey: Rutgers University Press 1996) by Rima Apple, 'Dietary Supplements: Can the Law Control the Hype' by Iona Kaiser in (2000) 37 Houston Law Review 1249-1277, 'The effectiveness of popular, non-prescription weight loss supplements' by Egger, Cameron-Smith and Stanton in (1999) 171(11) Medical Journal of Australia 604-608 and 'Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements' by Vladeck in (2000) 19(1) Journal of Public Policy & Marketing 132-138.