Very Soon, Falsely Using the Title ‘Dr’ Will Land You in a New Heap of Doo Doo

If you are worried about the activities of an alternative medicine practitioner, there is not an easy way to find the right authority who might look into it. The Advertising Standards Authority are very effective at investigating complex matters, but can only really rap knuckles and leave traders to carry on pretty much unharmed. Often, the only damage is an ASA ruling placed well down in the Google result list. The ASA can only also look into a narrow range of promotional material; they cannot touch web sites, for instance. Trading Standards have deeper powers and can criminally prosecute, but are not too well geared up to look into false medical claims. They are regional in their authority and have a shed load of complicated legislation to work within. The MHRA are probably quite rightly mostly concerned with the evils of Big Pharma. And the regulatory authorities that provide standards of behaviour and codes of ethics to alternative medicine practitioners are a hollow sham: can you find one example where a self-regulatory body has disciplined one of its members and documented the result?

But, the world of quackery is about to be shaken and I am being nice to them by giving them the ‘heads up’. The infighting about how best to regulate homeopaths may well become moot as legislation being brought in will allow direct consumer redress against many practices that mislead.

The complexity of trading standards legislation is being largely swept away and replaced with generalised laws to clamp down on unfair sales and marketing practices. The act is a incorporation of an EU directive into English law and so will be applicable throughout the EU area.

The regulations will cover a whole raft of,

Misleading practices, like false or deceptive messages, or leaving out important information.

Now, a lot of alternative medicine is full of that. Have a look at David Colquhoun’s blog about Boots and their new wonder drug, CoQ10. Within the act, there will be specific restrictions on certain practices. The ones I am going to be interested in are:

Specifically, if a alt med trader claims to be governed by a code of conduct and their behaviour does not comply, then they will be guilty. To me it looks like it is immaterial as to whether the governing body actually adjudictates on the traders compliance. That should be interesting, given the widespread practice of alternative medicine governing bodies not enforcing their codes of practice. It does look like it will be illegal for the providers of codes of practice to do so if it misleads the consumer.

Specifically, it will be an offense if,

• the trader has undertaken to be bound by a code of conduct (or code of practice), and indicates that he is bound by it,
  AND
  • the trader fails to comply with a firm and verifiable commitment in that code,

Next:

10. Scare tactics

Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
That is a stock trick of the trade. What would Clarins make of this? Should homeopaths be telling their patients about the evils of medical science anymore? What about anti-vax advice from homeopaths?

20. Pyramid schemes
Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products.

There goes Reiki, where practitioners typically only make money by ‘tuning’ new recruits.

But most interestingly,

11. Over promise, under deliver
Falsely claiming that a product is able to cure illnesses, dysfunction or malformations.

Now, what is going to be interesting is to what extent words like ‘cure’ are interpreted. The good news is there is going to be a ‘man on the Clapham omnibus’ principle here. What are the ‘reasonable expectations of the average consumer’ when they engage with a trader. It does not matter is a weaselly homeopath uses words like ‘treat’ – if it is reasonable that the customer expects to get better after the specific treatment then the homeopath could well find themselves on the wrong end of a guilty verdict.

The courts are going to demand that traders are going to be able to substantiate their claims. And we have a good idea of what they will make of anecdotal and testimonial based evidence.

It also looks like that there will be no need to establish there is an intention to deceive. The trader will be expected to undergo sufficient due diligence about their claims. It will not be sufficient just to wander around with your head in La La Land to escape the law.

Traders will also not be able to give false or misleading information is “the typical consumer takes, or is likely to take, a different decision as a result.” Such information concerns things like:

(a ) the existence or nature of the product
(b) the main characteristics of the product
(n) specification of the product

Will homeopaths be able to get away with saying things like ‘contains small amounts of natural remedies’? Probably not. I am sure the list is endless.

Also, the use of titles and credentials is likely to come under scrutiny. It will be an offense to mislead about the ‘nature, attributes and rights of the trader or his agent’ which include:

(c) qualifications
(d) status
(e) approval
(f) affiliations or connections
(g) ownership of industrial, commercial or intellectual property rights, and
(h) awards and distinctions.

Wow. That could be fun.

The new regulations will come in to force in a few months. As always with new legislation, we will need to see how the act is interpreted and how effectively it is enforced. But it does look like it might be much simpler to complain about certain practices and seek action.

So, if you are running a web site where you imply you are a doctor and you are not, and you claim to part of a regulated profession and you are not, and you offer healing practices that mislead, then you probably need to rethink your business. And you had better be nice to me.