The Federal Court yesterday ordered Homeopathy Plus! Pty Ltd (Homeopathy Plus) to pay penalties of $115,000 and its director, Ms Frances Sheffield, to pay $23,000 in penalties for making false or misleading representations about the effectiveness of the whooping cough vaccine and homeopathic remedies as an alternative to the whooping cough vaccine, in breach of the Australian Consumer Law.

Homeopathy Plus and Ms Sheffield were also ordered to cease publishing the articles that contained the representations and remove them from the Homeopathy Plus website.  The court also ordered that they be restrained for five years from making :

• certain specified statements to the effect that the whooping cough vaccine is ineffective, for so long as the vaccine is effective in protecting a significant majority of people from contracting whooping cough; and
• any statements or representations to the effect that homeopathic treatments or products are a safe alternative to the whooping cough vaccine, for so long as there is no reasonable basis in medical science to support those statements or representations and the vaccine is approved for inclusion on the National Immunisation Program by the Therapeutic Goods Administration.

“Representations that may mislead consumers about the effectiveness of medical products or treatments are of significant concern to the ACCC. The potential consequences for the community of false or misleading representations about health and medical matters may be extremely serious” ACCC Commissioner Sarah Court said.

“In this case, there was a real risk that consumers might be influenced by the representations not to use the whooping cough vaccine and instead to rely solely on homeopathic products for the prevention of whooping cough. This is against the advice of medical professionals and the Commonwealth Department of Health.”

“This decision demonstrates that businesses must take care to ensure that any statement or representation made about the effectiveness of a particular medical treatment or product is accurate and supported by adequate scientific evidence. It is no excuse that the person making false or misleading representations genuinely believes in a particular viewpoint and is a passionate advocate for a particular practice,” Ms Court said.

“Consumer protection issues in the health and medical sectors are a current enforcement priority for the ACCC. The ACCC has taken action against a number of businesses that the Court has found made false or misleading representations about medical treatments, and it will continue to do so.”

In her decision, Justice Perry found that Ms Sheffield’s evidence fell well short of providing any credible basis for the representations about the whooping cough vaccine, and that the publication of false representations about the effectiveness of the vaccine has potentially very serious and dangerous consequences. The Court noted that:

• even if one consumer has been diverted from vaccinating, the potential consequences may be very serious and potentially fatal
• the representations risked serious harm to the Australian community in potentially reducing the capacity of communities to cocoon vulnerable infants and others
• the representations conveyed the existence of a reasonable basis in medical science for stating that a vaccine for a serious and potentially fatal disease was ineffective, despite the evidence emphatically establishing that that was false
• the representations conveyed that homeopathy was a safe alternative means of preventing whooping cough, despite there being no reasonable basis in medical science for the representation.

Background

The Homeopathy Plus website contained statements to the effect that the whooping cough vaccine is “unreliable at best” and “largely ineffective” in preventing whooping cough, and that homeopathic remedies are a proven safe and effective alternative for the prevention of whooping cough.

In December 2014, the Federal Court found that Homeopathy Plus and Ms Sheffield engaged in misleading and deceptive conduct and made false or misleading representations by publishing statements on the Homeopathy Plus website to the effect that:

• the whooping cough vaccine is short lived, unreliable and no longer effective;
• the vaccine may not be the best solution for, of limited effect, and is unreliable at best, in protecting against whooping cough; and
• the vaccine is largely ineffective in protecting against whooping cough,

when in fact the whooping cough vaccine is effective in protecting a significant majority of people from contracting whooping cough.

The Court also found that Homeopathy Plus and Ms Sheffield 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 homeopathic treatments are a safe and effective alternative to the whooping cough vaccine,  when in fact no such foundation exists and the vaccine is the only treatment currently approved for use and accepted by medical practitioners for the prevention of whooping cough.

Whooping cough is a highly infectious respiratory disease which is most serious in young children. The Australian Government Department of Health recommends children receive the whooping cough vaccine as part of routine childhood immunisation.

In April 2012, Homeopathy Plus removed representations from its website at the request of the ACCC, after the ACCC had expressed concerns they were misleading.  Similar claims were then reinstated in January 2013, after which the ACCC to instituted proceedings against Homeopathy Plus and Ms Sheffield.

The statements that Homeopathy Plus and Ms Sheffield are restrained from making for five years are that the vaccine publicly available in Australia for whooping cough:

(a) is short-lived in protecting against whooping cough;

(b) is unreliable in protecting against whooping cough;

(c) is no longer effective in protecting against whooping cough;

(d) may not be the best solution for protecting against whooping cough;

(e) is of limited effect in protecting against whooping cough;

(f) is unreliable at best in protecting against whooping cough; and/or

(g) is largely ineffective in protecting against whooping cough,

for so long as the Vaccine is effective in protecting a significant majority of people who are exposed to the whooping cough infection from contracting whooping cough.