Homeopathy website: Misleading representations findings, problematic expert evidence & the responsibility of lawyers

Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Limited [2014] FCA 1412 saw the ACCC seek declarations, injunctions and penalties in respect of alleged breaches of the Competition and Consumer Act 2010 (Cth) – the Australian Consumer Law.

Findings as to misleading and deceptive statements

The court made findings adverse to the respondents in respect of statements regarding the medical whooping cough vaccine and in relation to statements about alternative homeopathic treatments. The findings were summarised at [318], including that the respondents in trade or commerce:

  • made false or misleading representations that the (medical) whooping cough vaccine is of a particular standard or quality, essentially short-lived, unreliable and ineffective, contrary to ss 29(1)(a) and (b) of the Australian Consumer Law; and
  • made false or misleading representations in connection with the supply or possible supply of homeopathic products or treatments, that these products or treatments have a particular standard or quality, contrary to s 29(1)(a) and (b) of the Australian Consumer Law, and have a use or benefit contrary to s 29(1)(g).

The court essentially held that the representations were false and misleading by asserting that there is an adequate foundation in medical science for the statement that homeopathic treatments are a safe and effective alternative to the Vaccine when no such foundation exists and the Vaccine is the only treatment currently approved for use and accepted by medical practitioners in Australia for the prevention of whooping cough.

Final orders and penalties are to be determined following further submissions.

Expert evidence & the role of the lawyer

Portions of the opinion evidence tendered by the respondents were excluded, for reasons explained in a discussion of expert evidence principles beginning at [20]. A lack of clarity as to the reasoning by which given opinions were reached appears to have been problematic: [33]

The Court supported at [36] an earlier statement of Lindgren J  as to the role of lawyers assisting expert opinion authors:

Unfortunately, in the case of many of the experts’ reports, little or no attempt seems to have been made to address in a systematic way the requirements for the admissibility of expert opinion. Counsel protested that, in order to ensure that the requirements of admissibility are met, lawyers would have to become involved in the writing of the reports of expert witnesses. In the same vein, counsel said in supporting the admission of certain parts of a report, that they were written in the way in which those qualified in the particular discipline are accustomed to write.

Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that admissibility is attracted ….

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