Healthy Skepticism Library item: 5873

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Publication type: news

Burton B.
Drug company's hearing too sensitive for criticism
New Matilda 2006 Aug 11
http://www.newmatilda.com//policytoolkit/policydetail.asp?PolicyID=468

Full text:

Drug company’s hearing too sensitive for criticism

http://www.newmatilda.com//policytoolkit/policydetail.asp?PolicyID=468
By: Bob Burton
11 August 2006

The chances are that while flipping through the pages of Australian
Women’s Weekly, New Idea or a newspaper during May you came across
gushing advertisements for the complementary health pills, Tebonin.

If you believe the ads, popping a Tebonin pill a day will relieve
tinnitus (the ringing sound some people have in their ears), dizziness
and even improve mental alertness. The promoters claim the drug improves
“impaired micro-circulation”, reduces “free radicals” and “promotes
optimum cell function.”

What you haven’t heard is that a group of doctors and pharmacists,
AusPharm Consumer Health Watch, were so sceptical that they drafted a
report disputing that the pills are as effective as claimed. Nor are you
likely to hear why they came to that conclusion.

Tebonin is a product based on an extract from the deciduous tree ginkgo
biloba, which has been patented by the German company, Dr. Willmar
Schwabe GmbH & Co KG. In Australia, Tebonin is imported by Schwabe
Pharma (Australia) Pty Ltd and distributed by the Gold Coast-based
company, Natural Health Products Pty Ltd.

Controversy over the effectiveness of ginkgo biloba herbal products is
nothing new, but the Australian companies sought an injunction from the
Federal Court of Australia to prevent the publication of the AusPharm
report. In early July, Justice Andrew Greenwood agreed. While the
injunction was intended as only a temporary measure until a full trial,
it is likely to have the effect of burying the report forever.

The companies claimed publication of the report would constitute
“misleading or deceptive conduct” under the provisions of the Trade
Practices Act and cause significant financial damage. They even wanted
the court to restrain the group and its members from “otherwise engaging
in criticism of the product Tebonin whether orally or in writing.”

Central to the companies’ claim was that the group should be treated as
if they were a company engaged “in trade or commerce.” It was ambitious
argument. AusPharm Consumer Health Watch, like many community groups, is
an informal group that is neither incorporated as a non-profit group or
as a company. Nor was there any evidence that it would gain any income
from a report that would be published for free access on its website.

While agreeing that there was no “demonstrated discreet commercial
arrangement between the operator of the site and a commercial party at
present,” Justice Greenwood claimed it didn’t matter. As several of the
principals in the group were also directors of for-profit websites,
Greenwood suggested that in the future it was possible they could
generate income from the report and website. To support this conclusion
he pointed out that one of the ten links from the group’s website was to
one of the for-profit websites.

Greenwood optimistically decided that if the injunction was granted the
public interest could still served by the Therapeutic Goods
Administration investigating the claims made in the draft report.

However, the simple act of the company serving a writ prompted seven of
the group’s ten founders to bail out. With the remaining three members
having spent over $15,000 out of their own pockets unsuccessfully trying
to fend off the injunction, the prospect of burning tens of thousands
more on an appeal or a full trial was too much to contemplate. Bowed and
bloodied, the defendants have reluctantly proposed making the injunction
permanent.

What Greenwood appears not to have understood was that as long as the
matter is before the courts, the Therapeutic Goods Administration are
obliged to sit on the sidelines. A regulation under their act
specifically prevents the agency from investigating a complaint “if a
proceeding has begun in a court about the subject matter of the
complaint and the proceeding has not been finally disposed of.”

The Complementary Health Council, which administers the self-regulatory
code for herbal product marketers, won’t investigate either as long as
the legal case is active.

The Tebonin case illustrates how the legal system can work to the
advantage of deep-pocketed corporations and why legal reforms are
necessary to protect public interest advocacy groups.

The Wilderness Society, which is currently on the receiving end of a
$6.9 million legal action brought by the logging company Gunns, argues
for further legal protections in a recent report, Gunning for Change.
While the right of corporations to sue for defamation has been removed
recently, Australian law still lags far behind that of the United
States, where 25 states have passed legislation aimed at protecting the
public right to participate in debate.

A group of public health professionals, who were only doing what the
government regulator failed to do in the first place, have been deterred
from raising legitimate questions over drug promotions. Greenwood’s
injunction has had the effect of forcing public-spirited citizens to
surrender their legal rights simply to clear the way for a government
regulator to investigate whether the companies marketing claims stack up
or not.

References :

Tebonin website:

http://www.tebonin.com.au/what_is_tebonin.asp

Justice Andrew Greenwood’s judgement:

http://www.austlii.edu.au/au/cases/cth/federal_ct/2006/868.html

About the author

Bob Burton is the editor of SourceWatch which documents the PR industry.

SourceWatch is a project of the U.S.-based Center for Media and Democracy.

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