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Australian court suppresses report questioning effectiveness of complementary remedy

BMJ 2006; 333 doi: (Published 13 July 2006) Cite this as: BMJ 2006;333:116
  1. Bob Burton
  1. Canberra

    A Federal Court of Australia judge has granted an injunction sought by a complementary health company to temporarily suppress a report by a consumer watchdog group.

    The report challenges claims that Tebonin, a product containing an extract of Ginkgo biloba, is an effective treatment for tinnitus.

    In April 2006 Schwabe Pharma (Australia) launched a major marketing campaign in pharmacies, newspapers, and magazines promoting Tebonin for “tinnitus and vertigo relief.”

    Tebonin contains an extract of Ginkgo biloba leaves called EGB761 and is made by the German company Dr Willmar Schwabe. On its website and in other promotional material the Australian subsidiary of the company claims that Tebonin has “been shown through clinical research to be an effective treatment for a range of conditions related to impaired micro-circulation.”

    AusPharm Consumer Health Watch, an informal group of mostly pharmacists but also including a doctor, reviewed several studies, including those the distributors cited as supporting its promotional claims. In a draft report the group raised doubts about Tebonin's effectiveness.

    Schwabe Pharma and its distributor, Natural Health Products, sought an injunction to suppress the report, claiming that its publication would constitute “misleading or deceptive conduct” under the provisions of the Trade Practices Act.

    The companies argued that the report could cause significant financial damage, and they also sought to restrain the consumer group from “otherwise engaging in criticism of the product Tebonin whether orally or in writing.”

    In his decision granting the injunction the Federal Court judge Justice Greenwood said that the Therapeutic Goods Administration could investigate the complaint over the promotion of the product.

    Commentators point out, however, that a regulation under the act specifically prevents the administration from investigating a complaint “if a proceeding has begun in a court about the subject matter of the complaint and the proceeding has not been finally disposed of.”

    The administration can now only review evidence submitted at the time of the application for Tebonin to be included on the register of therapeutic products. Any adverse findings are not made public.

    Justice Greenwood rejected the applicability of public interest protections available under the legislation on the grounds that several of the report's authors were also involved in profit making websites and that one of the 10 internet links given on the group's website was to one of those sites. He also said that clinical trial data on Ginkgo biloba in the group's report should be distinguished from data on the company's product.

    The case is not the only instance of medical practitioners being sued for their public advocacy. Dr Frank Nicklason, a staff specialist physician at the Royal Hobart Hospital, is being sued by the Tasmanian logging company Gunns for voicing concerns about the possible effects on health of open air storage of a pile of woodchips (BMJ 2005;330:349).

    Advocacy groups are pressing Australian state governments to reform legislation to prevent similar suits in the future.

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