The different faces of the Society of Homeopaths
Challenging misleading healthcare claims
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The different faces of the Society of Homeopaths
The Society of Homeopaths seemed to be taking responsible action to curb the claims of their members. But what's been going on behind the scenes?
Little more than a month ago, the Society of Homeopaths (SoH) issued new advertising guidance to all their members. It was far from perfect and, we believe, strays some distance from the guidance laid down by the Advertising Standards Authority (ASA/CAP), but, being generous, at least it was a step in the right direction in curbing the worst excesses of its members' advertising claims.
The ASA should now be checking the websites of SoH members and other homeopaths for compliance and taking appropriate action against those that fall short:
These are serious consequences for any homeopath and it may look like the SoH has faced up to its responsibilities and taken the responsible course of action in trying to help its members comply with the CAP Code and consumer protection legislation.
However, we now know that the SoH is not only supporting an anti-ASA campaign by some of its members, it is also seeking advice on the legality of the ASA's actions with a view to challenging them in the courts.
They're not doing this by providing high quality scientific evidence that substantiate claims for homeopathy made by their members, of course, but by trying to find a legal basis to undermine the ASA's legitimacy as the UK's independent advertising regulator.
They are also supporting a protest against the ASA, encouraging their members to complain to the Competition and Markets Authority and local Trading Standards. They seem to want them to:
They are not clear on what consumer protection regulations they believe the ASA has breached, but it's odd that in their previous guidance to their members on complying with the ASA guidance, they stated:
This admission that the 'legislative and national statutory guidance' are not written specifically to cover errant homeopaths but are laws and regulations that are designed to protect consumers from misleading practices by any and all traders is interesting.
Their arguments against the ASA are well-worn and have been thoroughly refuted. They do try the old 'the ASA is only a limited company' meme and refer to them as the ASA Ltd: perhaps we should refer to the SoH by their own corporate title, The Society of Homeopaths Ltd?
Anyway, in their guidance to their members, the SoH made several interesting statements with reference to the Professional Standards Authority (PSA) who legitimises them by placing them on their list of Accredited Registers. We submitted a Freedom of Information Act (FOIA) request to the PSA for details of all information held by the PSA relating to the SoH's guidance.
This provided several documents including an email from the SoH to the Director of Standards and Policy at the PSA, dated 07 December 2015:
The belligerent nature of their language puts into context the SoH's latest pronouncement about taking legal action against the ASA and the assumption of being singled out by the ASA for special treatment speaks volumes. No doubt such a line would play nicely to their vexed members.
That the SoH refused to even cooperate with the ASA is extraordinary (even if they did recognise they will have to cooperate eventually) and we sincerely hope it raised more than a few eyebrows at the PSA.
The PSA themselves state:
The PSA's 2015 decision to accredit the SoH gave the following instruction to the SoH:
The PSA's views of the necessity of complying with the ASA's rules could not be clearer, but here we have am Accredited Register not only wanting special, more 'reasonable' — presumably less stringent — privileges but actively seeking to take legal action against them.
Five years notice
But why this talk of 'no notice or consultation'? The ASA's remit was extended to cover traders' websites on 01 March 2011. The ASA issued clear guidance specifically for homeopaths in September 2011. The ASA's adjudication against the SoH themselves was published on 03 July 2013. There can surely be no excuse for the SoH not to be aware of their obligations under the CAP Code yet they and their members have already been given five years to comply. What have they not complied already? How much more time do they need?
It does seem to us that the SoH were looking to the PSA for some protection from those baddies at the ASA. However, other than an informal discussion between them on 12 January, no more appears to have been said. Hopefully the PSA will have reminded the SoH at that meeting of their responsibilities under the Accredited Register scheme.
But it seems the SoH were successful to some extent in delaying the ASA's action: their letter finally went out to homeopaths up and down the country in September this year and they were given a full five weeks in which to get their websites in order — five years eight months after the rules came into force for websites.
But returning to the SoH's guidance, we felt that what they said about testimonials was particularly interesting:
Declaring that the PSA 'appear happy' with their interpretation of the ASA's guidance on testimonials seemed rather odd and informal language to us: did the PSA fully agree with the statement or did they not? Did they even have a view on whether such a disclaimer would adequately protect them from the ASA?
We asked the PSA:
The 2015 decision referred to is no longer on the PSA's website, but in relation to the ASA and testimonials, it says:
It's not at all clear to us how the SoH interpreted that as saying that the PSA 'appear happy' with the SoH's disclaimer, but now that the PSA have made it clear they believe it to be a matter not for them but for the ASA, we sincerely hope the SoH will update their guidance to clarify the PSA's position on this and update their guidance to bring it in line with the ASA's.
The SoH's advertising guidance does go on to say:
Although this is an important part in the ASA's guidance on testimonials and endorsements, it is but one part of it. Overall, the SoH could have saved themselves a lot of bother by simply referring their members directly to the ASA's own comprehensive and clearly written guidance rather than regurgitating it and interpreting it, changing it in the process, inadvertently or otherwise.
As well as writing to thousands of homeopaths, we have been made aware that the ASA have also contacted at least one trade directory, informing them of the requirements to comply with the CAP Code.
Therapy Directory lists some 3,855 practitioners and premises in 34 different categories, including homeopaths. We were sent a copy of the text of an email from them, sent originally to a homeopath, explaining their decision to comply with the ASA's guidance:
It's good to see the ASA taking such a comprehensive approach to cleaning up this sector and Therapy Directory's responsible action to comply with the ASA's rules.
We hope all homeopaths, their trade bodies and other trade directories follow this responsible lead.
But to return to the SoH in particular: is there really a conflict between representing your members best interests and complying with the rules, regulations and laws they are supposed to?
That depends on what you believe is in your members' best interests. The SoH seemed to have taken a responsible approach to persuade its members to comply, but the other face they now show wants to challenge the ASA in the courts.
It'll be interesting to see how far they get, but it would be perverse if it was believed that continuing to defy the advertising regulator and face possible conviction under consumer protection regulations was in the best interests of any homeopath or of the SoH itself.
The Society of Homeopaths Ltd are at a crossroads: they need to grapple with the choice they face and decide whether they will go down the path of challenging the ASA or finally face up to their responsibilities as a supposed professional regulator, overseen by the Professional Standards Authority.
This will also be a challenge for the PSA: how they deal with a wayward SoH will be a test of their willingness and ability to properly oversee their Accredited Registers and properly protect the public.
22 November 2016
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