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Doctor who complained to regulator about weight loss product is sued for libel

BMJ 2011; 342 doi: https://doi.org/10.1136/bmj.d3728 (Published 13 June 2011) Cite this as: BMJ 2011;342:d3728
  1. Melissa Sweet
  1. 1Sydney

An Australian doctor and campaigner for the ethical marketing of medical treatments, Ken Harvey, is facing an $A800 000 (£520 000; €590 000; $845 000) defamation suit relating to a complaint he lodged with regulatory authorities about a complementary weight loss product called SensaSlim.

Australian Skeptics, a group that presses for sensible scientific views (www.skeptics.com.au), has launched a campaign to raise funds to support Dr Harvey, a retired academic with an honorary appointment at La Trobe University, Melbourne, in what it calls a “SLAPP” (strategic lawsuit against public participation).

“To use legal action to stop his complaint in its tracks is similar to the sort of action that the British Chiropractic Association used against Dr Simon Singh in the UK,” said Tim Mendham, executive officer of Australian Skeptics, referring to the association’s libel action against the writer Simon Singh after he accused it of “happily promoting bogus treatments” (BMJ 2010;340:c2086, doi:10.1136/bmj.c2086).

The Australian Therapeutic Goods Administration’s complaints resolution panel has received a number of complaints about the product, including some from Dr Harvey, but under the Therapeutic Goods Regulations these cannot be considered while legal action is under way.

Dr Harvey said the case highlighted several regulatory failures by the Therapeutic Goods Administration.

Documentation seen by the BMJ shows that on 10 March the administration’s complaints resolution panel upheld an anonymous complaint against the marketing of SensaSlim, but this determination was withdrawn after the company said that its response to the complaint had not been taken into account.

A spokeswoman for the administration said that it had not failed to take appropriate regulatory action in relation to SensaSlim. She said that SensaSlim is a listed low risk medicine, meaning that it has been evaluated for quality and safety but that, unlike in the case of high risk prescription drugs, the administration provides no assurance that the product is effective.

The spokeswoman said that it was the first time that the complaints resolution panel had postponed consideration of a complaint because of separate legal action. “The regulations that mandate this course reflect the well recognised principle that an administrative body such as the panel should not normally be making determinations on issues that are the subject of judicial consideration,” she said.

“It is an important component of our legal and regulatory system that TGA [Therapeutic Goods Administration] and the CRP [complaints resolution panel] observe procedural fairness.”

An in-house legal counsel for SensaSlim Australia, Terry Harrison, denied that the company was trying to stop Dr Harvey or other critics speaking out. “It’s not an action to stop the complaints process. It’s nothing to do with gagging him, as he’s trying to spin it,” he told the BMJ.

He said that the product was sold “all around the world” and was “going into 17 countries in the northern hemisphere.”

The case against Dr Harvey is due for mention in the New South Wales Supreme Court on Tuesday 14 June, as the BMJ went to press.

Notes

Cite this as: BMJ 2011;342:d3728

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