Challenging misleading healthcare claims

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:

The ultimate sanction is referral by the ASA to the Trading Standards under the Consumer Protection from Unfair Trading Regulations 2008. Trading Standards is the legal backstop for the ASA. What this means is that where the threat or application of our sanctions have failed to achieve compliance, the matter may be formally referred to Trading Standards. Trading Standards will consider cases to determine if there are breaches of relevant legislation and take appropriate action in accordance with its own enforcement policy.

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.

Legal challenge

Andy Lewis of The Quackometer has highlighted that the Society of Homeopaths (SoH) intend to fight the Advertising Standards Authority (ASA) over the advertising guidance they issued recently.

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:

…investigate allegations of illegal bias against homeopaths and homeopathy by the Advertising Standards Authority Ltd, in breach of Consumer Protection Regulations.

The 6 RSHoms claim that the ASA has no legal basis for what it is doing and is acting unreasonably in targeting homeopaths.

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:

The practical approach of the guidance, combines previous publications published by the Society of Homeopaths, CAP and ASA, and should allow further scope as to what is deemed acceptable, whilst remaining within current legislation, regulation and the Society’s Codes of Ethics. The document lays out a proposal, which has been cross-referenced against the following legislative and national statutory guidance sources. Most of the following are non-homeopathy specific and therefore applicable to all services across all industries:

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?

Serious initiative

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:

Sorry to chase you but I wanted to update you on a serious initiative by ASA/CAP. See attached letter [download here].

In short, with no notice or consultation at all, they want to impose guidelines on us, send them out inside a month and then chase all our members to make sure they have complied within a month! You will not be surprised to hear that we have refused to co-operate but we have said that, if they pause the process, we are more than happy to meet with them and see if we can work out a way forward that ensures our members are compliant to reasonable guidelines. We need to be working with them in the long run, rather than working against them.

As far as I am aware, no other accredited register has been targeted. I am guessing they will be in time!

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:

Standard 8 requires registers to set standards of business practice, including advertising (and to comply with the Advertising Standards Authority’s requirements).

The PSA's 2015 decision to accredit the SoH gave the following instruction to the SoH:

The Society must replace the section of its Code of Ethics and Practice relating to Advertising and Media which states ‘Examples of Codes the Society may also take account of are the relevant clauses of The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code), and the current guidelines of the Society’ with ‘will take into account’. This action to be completed within three months.

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.

Hearsay

But returning to the SoH's guidance, we felt that what they said about testimonials was particularly interesting:

Testimonials

When referring to testimonials, it is wise to encourage people to seek independent medical advice and stay in close contact with their mainstream healthcare professionals. This supports an open dialogue, choice and informed, integrated care. The below was agreed by the Preliminary Investigation Panel, the Professional Standards Authority have also seen this statement, and appear happy with its use.

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:

1. What communication has there been with the SoH on this?

The testimonials were discussed as part of last year’s reaccreditation process, in particular the annual review report, we sent all of the information except the information we consider exempt to you in November 2015. There have been no further discussions about the testimonials since this date.

2. What does the statement that you 'appear happy' with the use of these statements mean?

It is our understanding that this relates to the statement in the published panel decision in 2015. The decision reflects the fact that the panel was made aware of the above but made no specific comment for or against it.

3. Can you confirm that you told the SoH that the use of these statements by their registrants in their advertising was acceptable to you?

We have made no specific comment about this matter beyond what is said in the 2015 decision. This is because we consider this to be a matter for the ASA.

The 2015 decision referred to is no longer on the PSA's website, but in relation to the ASA and testimonials, it says:

The Society [of Homeopaths] also found guidelines relating to testimonials were restrictive and could prevent registrants from providing sufficient information for service users to make informed decisions. The Panel noted the Society has provided a disclaimer for registrants’ websites to make clear testimonials are not intended to make any false claims about homeopathy.

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:

Please note: Any claims made within a testimonial are subject to the CAP Code. Therefore, if a testimonial makes an efficacy claim, the author’s permission should be sought to edit out the relevant parts.

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.

Trade directories

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:

I can appreciate how you and other Homeopaths currently feel and I hope that this email will help your understanding as to why we have made these changes.

Because this is now a legal requirement for advertising, as a marketing platform, we must abide by it. CAP were the ones that contacted us about the changes which is why we have actioned it.

I can see that you have already complied [sic] a detailed document raising your concerns, but please also have a look here: http://www.homeopathy-soh.org/images/ASASept2016/ASA-Guidance-6.pdf [the SoH's advertising guidance] as this may prove helpful for you when addressing this with the ASA / CAP. I would recommend contacting CAP as they are the ones that have implemented these changes and are therefore the ones to speak with.

Unfortunately, because we are a marketing platform and not therapists ourselves, as mentioned before we must adhere to these changes and won't be challenging this with either the ASA or CAP.

Please do keep us updated, I believe that you will receive a great amount of support from other Homeopaths that are currently experiencing the same.

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.

Crossroads

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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