This is the summary of a speech delivered to
on 1 October, 1997
by John Foley
In South Australia, the major legislation that protects consumers is the Fair Trading Act 1987, which is mirrored in other states by similar legislation.
The Office of Business and Consumer Affairs is part of the Attorney-General's Department, and is the particular branch of the public service that administers the Act.
The Trade Practices Act is to protect consumers on a federal level. It is administered by the Australian Consumer and Competition Commission, the ACCC.
Clause 42 of the Fair Trading Act refers to Substantiation of Claims. In brief, the Commissioner for Consumer and Business Affairs can demand that a trader substantiate any claim that they make. Failure to do so can incur a penalty of $5000. Can someone substantiate that Non-Contact Therapeutic Touch actually does something?
Clause 56 states that no person shall engage in misleading and deceptive conduct.
Clause 57 refers to the relative bargaining strengths of the trader and consumer, whether the consumer could understand the documents and unfair tactics used by the trader. In the context we are discussing here, suppose someone feels ill and responds to publicity of some sort and decides to attends a natural medicine practitioner. The practitioner wears a white coat, refers to himself as a health professional, has letters after his name and displays various dipoma and certificates on the wall of the practice. It is obvious who has the advantage in talking about illness.
Clause 58 prohibits false or misleading representations in relation to value, previous use, history, performance characteristics or benefits of any goods or services.
Clauses 63 and 64 prohibit conduct that is liable to mislead the public as to the nature and suitability for the purpose of any goods or services.
If you buy a soft toy in Australia, you can be fairly well assured that it is non toxic, has no small parts to choke children, and no sharps to cut them even if they manage to pull it apart.
You may remember what it used to be like to buy a used car. Deceit, hoodwinking and high pressure sales tactics were the nicer side of the industry. Winding back odometers, covering rust, saw dust in the gearbox and telling outright lies about the previous owner being a little ol' lady were commonplace. All but the sharpest customers were victims of a shady industry. In the early 70s, legislation was introduced to protect the public. Currently, second hand cars sold for more than $3000 must carry a guarantee and many other safeguards apply, including displaying the Form 1 in the window.
When you borrow money to buy anything from a stereo to a house, the entire deal is controlled by Acts of Parliament. The trader that lends you the money is strictly controlled by legislation.
Unsafe wiring can not only electrocute people, but it can also cause fires. To do electrical work in this state, you have to do an apprenticeship and become a licensed electrician. To gain such a license, you would need to go through the Plumbing, Electrical, Electronic, Refrigeration organisation (PEER) school or Technical and Further Education (TAFE) College, both strictly controlled by your government.
It is not illegal to cut someone else's hair in South Australia. However, if you charge money for that service, you are controlled by the Hairdressers Act 1939 through the Accreditation Registration Council under the Department of Training and Further Education.
Cars manufactured after 1986 must use unleaded petrol. The nozzle of the hose on a super bowser is too wide for the lip of the tank on modern cars, but the lip matches the hose on an unleaded bowser so you can't make a mistake.
A computer in the bowser measures the volume accurate to 30 millilitres, (a nip of whisky), in 10 litres. It also works out the price for you and the price per litre has to be displayed on the bowser, accurate to one cent. You are protected from unscrupulous petrol traders by the Trade Measurement Section of the Office of Business and Consumer Affairs, part of the Attorney-General's Department.
When we are feeling frightened, vulnerable, lost or in danger, we can always turn to our police officers for help. It is an offence to unlawfully wear the uniform of, or in any way infer that you are, a police officer.
The Liberal Party's health policy is spelt out in the document, A Healthy Future. Page 26 of that document relates to "Alternative" treatments. The government has directed the Department of Employment, Education and Training and the Department of Health and Human Services to work with the various non-registered alternative therapies to define appropriate training, accreditation and qualification standards for practitioners of those therapies.
How does an organisation get accreditation?
Suppose you want to get government acceditation for your window washing school and I want the same for my natural health college. We submit the curricula of our schools to an Accreditation Registration Council in the Department of Employment, Training & Further Education. They look at a variety of factors such as the number of chairs, overhead projectors and so on, and may ask expert advice on the subject matter. In your case, that would be another window cleaner who will have a look at your curriculum and decide if you are teaching everything there is to know about window cleaning. In my case, they get people who are involved in the natural health industry to do the same with my curriculum. Whether it works or not is not even in question. The Department of Education, Training & Further Education has no interest in efficacy and no right to even question it. Their business is education, not health. Once they give our curricula the thumbs up, we have State Government accreditation.
We can now apply to the Federal Government who will automatically give our schools Austudy and Abstudy approval. Repeated attempts to stop this silly cycle fall on deaf government ears. The Federal Government accepts what the State Governments say, and the State Governments accept what the college owners say. Catch 22 was never as good as this!
Now we can not only advertise that we are government accredited and Austudy/Abstudy approved, but taxpayers are effectively paying the students' school fees.
The Government has also ensured that the approval processes of the Therapeutic Goods Administration does not throw up unnecessary barriers to people obtaining "alternative" therapeutic products where the intrisic safety of the product is not in doubt but the therapeutic effectiveness is unproven. As a citizen and a consumer, you are entitled to ask your government, "How can I tell the difference if I want the same guarantee that I get from a hairdresser?"
AUST R & AUST L
To a very small degree, the answer is the Aust R and the Aust L numbers. These numbers are supposed to be put on all devices and goods that make therapeutic claims, but many vendors fail to do so and the devices and goods are sold unmarked. Therapeutic devices include everything from heart valves to hyperdermic needles. Therapeutic goods are basically things that you swallow or rub on. In simple terms, medicine that is proven to work gets an Aust R number for Registration. Anything else that claims to be medicine, but has no evidence to back it up, gets an Aust L number for Listing. A red spotted handkerchief and a purple anodised aluminium plate are two products that share this dubious honour with several thousand other devices and over 15000 goods.The hypocrisy of having this double standard was introduced with the Therapeutic Goods Act 1989, and its sole purpose is to protect the income of people who want to sell goods and devices that can't be demonstrated to work.
I used the phrase "to a very small degree" because I challenge any of you to go to a pharmacy, a health food shop, a supermarket or anywhere else that sells therapeutic goods and ask the staff if the products are Listed or Registered. You will probably get a "Yes" for an answer, as very few people know anything about it. Once you get past that, ask them if they know the difference.
In 1996, Senator Woods commissioned a report into the Therapeutic Goods Administration. It was called the Woods Review. On page 53 of that review, it is stated that "the Therapeutic Goods Administration...has rarely if ever...asked for evidence (of efficacy) and there is in fact little or no legislative backing for the Therapeutic Goods Administration to require evidence of efficacy for listed products".
How do get a product Listed? Just make some therapeutic claims about lawn clippings, Smarties or a children's toy, pay $220 and it is Listed in your name. Your next door neighbour can take exactly the same products, make different therapeutic claims about them and List them for the same price. I am thinking of listing steamed wombat droppings and claiming that they increase the intelligence. As soon as people find out what they are, they won't eat any more. Q.E.D.
When you market your Listed product, just in case you get confused as to the fine wording of what you can and can't claim, the Therapeutic Goods Administration will send you a free copy of their Advertising Code. The main function of this code is to help you to get around Clause 56 of the Fair Trading Act, regarding misleading and deceptive conduct.
MISLEADING & DECEPTIVE CONDUCT
Eating an apple in Australia is something that we can do without fear. If you travel in large parts of Asia, South America and Africa, the only fruit you dare to eat is the sort you can peel. To eat an apple the way we do in Australia is to invite a tummy upset at least, and possibly death. Coca-Cola is one of the best known icons in the world. All but the most health conscience of us would snap open the familiar red and white can and drink the contents with confidence. We don't have to be concerned about infection, foreign objects or poison.
In all other areas, consumers are able to make an informed choice. If you look up "alternative", "complementary" and "medicine" in the dictionary, you will find very clear definitions. If it is not an alternative to medicine, then don't call it an alternative. If it is not medicine, then don't call it
medicine. When I see shops claiming to sell "health food", I wonder what it is that my supermarket sells. Unhealthy food? Terms such as health food, therapy, remedial, ...ology and science should be restricted to products or services that can demonstrate that they are what they are advertising.
Current consumer legislation is sufficient to prevent traders from making false claims. In long discussions involving the state Attorney-General, the Commissioner and the Manager of Consumer and Business Affairs, I am assured that they are not going to enact the current legislation, and was told that it is a Health concern. The SA Health Commission and the federal Department of Health and Family Services have no legislation to control any of it. They only handle the medical industry.
I don't want to see "complementary medicine" banned. People should be free to choose how they look after own health. If an adult gets sick and chooses to go to a church and pray, then that should be the individual's choice. If someone else chooses to go to a homoeopath, then that should be the individual's choice as well. When I get sick, I choose to put my health in the hands of science. The non-medical industry has worked very hard to blur the boundaries of science and faith. All I am asking for is that my government gives me the same protection as when I buy petrol or a yo-yo.
If you eat mettwurst in Australia, you can consider it safe.
If you buy peanut butter, you can eat it without worrying about salmonella poisoning.
If you book a skiing holiday in Australia, you can be very sure that when you go to bed at night, your lodge is not going to slide down the hill and crush you to death in your sleep.
Sometimes the system breaks down. When it does, there are rigourous enquiries and further safeguards are put in place.
When it comes to your health, your goverment has let you down. The question to ask the politicians and the public servants is this.
"Which frauds are the Government going to support?"
1 October, 1997.
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