Alternative medicine is big business. From Acupuncture to Yoga (I couldn't think of an example for "Z", but I wouldn't be surprised if there is one) there are all sorts of remedies, treatments, techniques, practices, devices and indeed entire medical and philosophical systems available in the UK that claim to cure disease, rebalance the body's energy fields and generally heal the sick.
Proponents of the myriad of forms of alterative medicine argue that it is in some way "outside science" or that "science doesn't understand why it works". Critical thinking scientists disagree. The best available scientific data shows that alternative medicine simply doesn't work, they say: studies repeatedly show that the effect of some of these alternative medical therapies is indistinguishable from the well documented, but very strange "placebo effect". The placebo effect is the therapeutic and healing effect of an inert medicine or ineffective therapy (the placebo in question).
It is a debate which has raged for decades, and will almost certainly continue to do so.
Enter The Consumer Protection from Unfair Trading Regulations 2008 (the "Regulations"). The Regulations came into force on 26 May 2008 to surprisingly little fanfare, despite the fact they represent the most extensive modernisation and simplification of the consumer protection framework for 20 years.
The Regulations prohibit unfair commercial practices between traders and consumers through five prohibitions:-
- A General Prohibition on Unfair Commercial Practices (Regulation 3).
- A Prohibition on Misleading Actions (Regulations 5)
- A Prohibition on Misleading Omissions (Regulation 6)
- A Prohibition on Aggressive Commercial Practices (Regulation 7)
- A Prohibition on 31 Specific Commercial Practices that are in all Circumstances Unfair (Schedule 1).
One of the 31 commercial practices which are in all circumstances considered unfair is "falsely claiming that a product is able to cure illnesses, dysfunction or malformations". The definition of "product" in the Regulations includes services, so it does appear that all forms medical products and treatments will be covered.
A trader selling a product or service that is based on alternative medicine, is likely to claim that the product/service is able to cure illnesses, dysfunction or malformations. If he does so falsely then he commits a strict liability offence.
If we accept that mainstream evidence based medicine is in some way accepted by mainstream science, and alternative medicine bears the "alternative" qualifier simply because it is not supported by mainstream science, then where does that leave a trader who seeks to refute any allegation that his claim is false?
Of course it is always open to the trader to show that his the alternative therapy actually works, but the weight of scientific evidence is likely to be against him.
Regulations 17 and 18 set out defences to the strict liability offence. If a trader can prove the offence is due to a mistake; reliance on information supplied by another person; the act or default of another person; an accident or another cause beyond his control he has a defence provided he can show he took all reasonable precautions and due diligence to avoid committing the offence. In the case of advertisements, if an advertising business does not know the publication of the advert will be an offence then it can avail itself of the "mere conduit" defence.
However, when the best available scientific studies show that an alternative medicine or therapy is no more effective than a placebo, and this has been brought to the trader's attention, then it must be questionable whether he can avail himself of the defences in Regulations 17 and 18.
Given the considerable commercial vested interests in the markets for many alternative therapies such as homeopathy, acupuncture and many so-called "herbal remedies" and the endless debate on the appropriate place (or otherwise) of such alternative practices in medicine, one wonders whether local Trading Standards bodies, the Office of Fair Trading and the Advertising Standards Authority (in respect of claims made in adverts) will be willing to take enforcement action against all but the lowest level purveyors of snake oil, healing crystals and charm bracelets.
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