NZ political parties’ transgender health plans

NZ political parties’ transgender health plans

Access to gender affirmation surgery in New Zealand is abysmal, with waiting lists that are decades long. I’ve asked our major political parties what they will do about it if elected.

On the 27th of July, I sent emails to four political parties outlining the issue of access to gender affirmation surgery*. I contacted the healthcare spokespersons for the Green, Labour, and National parties, and the co-leaders of the Māori party since I couldn’t find any health spokesperson for them. They each received a version of this email:

Tēnā koe,

Since the US president Donald Trump announced this morning that transgender Americans would not be allowed to join the US military, saying that their healthcare is too expensive[1], I have been reminded of a similar issue that we face here in New Zealand.

For many transgender people, gender affirmation surgery is potentially life-saving. Transgender people are a minority population in New Zealand who are at higher risk of depression and suicide[2]. It’s important that their needs are not forgotten.

I’m writing to you as the spokesperson for health for the XXXX Party, because this matter is something I want to be sure is addressed in the coming election. It is something I will be considering carefully before choosing which party will receive my party vote.

Currently, gender affirmation surgeries are funded out of the Ministry of Health’s special high cost treatment pool, at an intended rate of one “female to male” surgery and three “male to female” surgeries every two years[3]. However, since New Zealand’s only surgeon who could perform these surgeries retired in 2014[4] the surgeries appear to have stopped.

In response to a request made by Jennifer Shields, the Ministry of Health revealed in May this year that:

“There are currently 71 people waiting for male to female gender reassignment surgery and 19 people waiting for female to male surgery.”[5]

They also noted in their response that:

“There are no plans to increase the rate of surgery. A mathematical calculation suggests that the 71st person on the male to female waiting list will be operated on in around 47 years if the rate remains the same. Similarly, the 19th person on the female to male waiting list will be operated on in 38 years.”[5]

Currently, this situation is fairly untenable. Transgender people seeking gender affirmation surgery are left to pay out of their own pocket to travel overseas for surgery, or wait for decades in the hope that the government might eventually get around to them. It should frankly be cause for international embarrassment.

Which is why I’d like to ask you how the XXXX Party would address the health issues faced by transgender New Zealanders if you are voted into government in September.

I also know many other people who consider this an important issue and would like to know your answer. It would be great if the XXXX Party’s plan on this issue could be released publicly. In any case, I intend to share the response I receive with others who care about this.

Ngā mihi nui,
Mark Hanna

[1] https://www.nytimes.com/2017/07/26/us/politics/trump-transgender-military.html
[2] http://www.sciencedirect.com/science/article/pii/S1054139X13007532
[3] http://www.health.govt.nz/system/files/documents/publications/gender-reassignment-health-services-for-trans-people-in-nz-v3oct14.pdf
[4] http://www.radionz.co.nz/national/programmes/morningreport/audio/20148752/plastic-surgeon’s-retirement-leaves-sex-change-surgery-in-limbo
[5] https://twitter.com/jenkshields/status/867126476675481600

Later, after watching the Rainbow Wellington Election Forum video on Facebook, I also sent the email to Damian Light, the diversity spokesperson of the United Future Party. During the forum, he had mentioned something I hadn’t heard before about this issue:

I stand to be corrected on this if I’m wrong, but I understand that the waiting list [for GRS] could be cleared for as little as five million dollars by using overseas [surgeons]

So as well as asking for his response to the original email, I asked if he was able to point to his source for that statement, since I hadn’t been able to find one.

Though to put that number in a bit of context, ACC spent $8.6 million on acupuncture for lumbar sprain in 2014/15. This is despite their most recent review on acupuncture for musculoskeletal pain in 2011 finding that the evidence in this area was “inconclusive”.

Getting any response from some parties has unfortunately been like getting blood from a stone, and not all have responded by the time this article was published. If I receive more responses in the future, I will update the article to include them.

Here are the responses I have received so far. You can click the links below to jump to a particular party’s response:


Green Party

My email to the Green Party was sent to Julie-Anne Genter, as their spokesperson for health, but it was forwarded to Jan Logie’s office as it’s an issue she’s worked on.

Kia ora Mark,

Apologies for the delay, and thanks so much for your email. Julie Anne’s office passed this to Jan Logie’s office because Jan has been working very hard on issues of healthcare for trans people, but I’m cc-ing in Julie Anne’s EA Stuart as Julie also wants to stay connected to these issues.

Jan and the Green Party agrees with you about the huge, life-saving importance of gender reassignment surgery and that the waiting list is utterly unacceptable.

The Green Party agrees with the recommendations made by a coalition of groups to the panel of MPs on the International Day against Homophobia, Biphobia and Transphobia on May 17th this year, which were the following:

  • Require district health boards to ensure trans and gender diverse people’s access to gender affirming health services available in NZ, based on an informed consent model of healthcare
  • Provide sufficient funding to enable timely access to gender reassignment surgeries not provided through the NZ public health system
  • Support the development of training and resources on an informed consent model of healthcare for trans and gender diverse people, and provide information and resources for communities and individuals about accessing gender affirming services.

We also note that the aim should be to create a New Zealand based national surgical service for gender reassignment surgery, and to ensure that we have this specialist knowledge in New Zealand (as well as the interim measure of funding being available for people to travel for the surgery).

You might be interested to read the Green Party minority report on the select committee report on a petition around trans health care from 2015: https://www.parliament.nz/resource/en-NZ/51DBSCH_SCR69574_1/1911770f0cb53490fadba8dbcfb09d7c24955763

Jan is really passionate about this issue and will continue to work to advocate to ensure transgender and gender nonconforming people get access to the healthcare they need.

Please feel free to get in touch with any further questions.

Kind regards

Jessie Dennis, Senior Executive Assistant to Jan Logie MP

I also sent a follow-up question about what “timely access” means more precisely, after Jennifer Shields raised the question on Twitter:

Hi Mark,

I talked with Jan about this. As far as numbers, just like any urgently needed surgery, the ideal wait time is none at all. Of course, while that might not always be realistic, we’d work to get it as close to that as possible.

Many Thanks

Jessie Dennis, Senior Executive Assistant to Jan Logie MP

The Green Party also has a Sexual Orientation and Identity Policy.

At the time I wrote this section, that policy was last updated in 2014 and does not mention the issue of access to gender affirmation surgery. However I believe some updates are being worked on so there may now be a more recent version.


Labour Party

I’ve yet to hear back from Labour. Originally I contacted their health spokesperson Dr David Clark, but after seeing Grant Robertson speak on the topic at the Rainbow Wellington Election Forum I forwarded the email to him on the 23rd of August. I’ve had an acknowledgement from his EA, but no response yet.

Update 2017/09/21 I’ve heard back from Grant Robertson about this. Here is his response:

Hi Mark

Apologies that you have not had a detailed reply, it is the result of a bit of confusion over who was responding and then just general busyness. As you said in your email you are aware of our Rainbow Policy. Here is the link again for ease of reference. http://www.labour.org.nz/rainbow

It is worth pointing out the specifics of that in terms of transgender health issues in particular

  • improve access to affordable primary care based on the informed consent model, particularly for younger, trans, and intersex New Zealanders. This also includes training and resources for health professionals about sexual orientation and gender diversity
  • provide targeted suicide prevention funding to build capacity of rainbow community support organisations and mainstream crisis support and services.
  • increase resourcing for youth mental health
  • support and ensure all district health boards reduce barriers for trans and gender diverse people to access gender affirming healthcare, transition related medical support (including hormones, social support and other cosmetic interventions), and an assessment of the need for gender reassignment surgery as an elective service
  • ensure fair access to publicly funded gender affirming surgical options for trans and gender diverse people based on need.

Labour has allocated an additional $8 billion over four years to the health sector to meet these, and other, priorities. We will invest in the high cost treatment pool so that we are able to send people to get the surgery they need but we will also focus on building capacity back up in New Zealand to perform surgery, because we need to do both to make an impact on the waiting list.

I hope that answers your questions.

Regards

Grant

Grant Robertson

While waiting for my response, an article was published in the New Zealand Herald that gave some detail around Labour leader Jacinda Ardern’s response to a question from a student about access to gender affirmation surgery:

One of the students asked Ardern what Labour’s stance was on helping more people have sex reassignment surgery, and providing other support.

The Labour leader agreed greater support was needed, at which point [Annette] King added that one problem was a lack of specialist surgeons in New Zealand, and more training was needed.

“I also was married to a transgender person,” King said.

“So I understand very much the issues for transgender people, and the need to have access to surgery and to counselling and drugs and support. We are very supportive of that in our policy.”

NZ Herald

Labour has a Rainbow policy, which has this to say on access to gender affirmation surgery and other healthcare for trans New Zealanders:

Labour will:

  • improve access to affordable primary care based on the informed consent model, particularly for younger, trans, and intersex New Zealanders. This also includes training and resources for health professionals about sexual orientation and gender diversity
  • support and ensure all district health boards reduce barriers for trans and gender diverse people to access gender affirming healthcare, transition related medical support (including hormones, social support and other cosmetic interventions), and an assessment of the need for gender reassignment surgery as an elective service
  • ensure fair access to publicly funded gender affirming surgical options for trans and gender diverse people based on need.

Also, the minority view on a petition on this topic noted in Jan Logie’s response from the Green Party was apparently from both the Green and Labour parties (it’s written from the perspective of the Green Party but in the heading it notes it’s also the view of the Labour Party): https://www.parliament.nz/resource/en-NZ/51DBSCH_SCR69574_1/1911770f0cb53490fadba8dbcfb09d7c24955763


Māori Party

I contacted Māori Party co-leaders Marama Fox and Te Ururoa Flavell, and received this response from Marama Fox:

Tēnā koe Mark

Thank you for your letter to me regarding the health issues faced by New Zealand’s transgender community. I appreciate you writing to me and I apologise for the delay in responding.

Regarding the concerns you note about the availability of gender affirmation surgery, I too share your concerns as this leaves many of our whanaunga in an untenable position. As such I have referred your email to the Minister of Health, Hon Dr Jonathan Coleman for his response.

Mark, the Māori Party has not developed a specific transgender policy or a wider LGBT policy for the 2017 General Election. However I note that as a Party born of the dreams and aspirations of tangata whenua, a large proportion of whom identify with the LGTB and transgender communities, the Māori Party seeks to engage with all whānau to enable them meet their aspirations whatever they may be, as well as address any problems that they may be experiencing. To this end we welcome organisations and individuals that wish to engage with our party so that we may better support the transgender and LGBT communities.

Thank you again for writing to me and again I apologise for the delay in responding from you. I look forward to hearing from you in the future.

Nāku noa, nā

Marama Fox
Co-leader of the Māori Party and List MP for Ikaroa-Rāwhiti

I received this response as a PDF and wasn’t able to copy/paste text from it, so typed it out by hand. Please assume any mistakes in the above text are mine.


National Party

I contacted Health Minister Dr Jonathan Coleman about this. I was told he had asked Ministry of Health officials to advise him on the topic before he responded, and though I haven’t received his response yet I was told on the 28th of August that I should have it within “the next week or so”.

If the National Party has an LGBT-specific policy, I haven’t been able to find it.

Update 2017/09/11 I’ve heard back from Dr Jonathan Coleman about this. Here is his response:

Dear Mr Hanna

Thank you for your email of 27 July 2017 about transgender health services.

The Ministry of Health considers that transgender health services are best organised and developed on a regional basis. I am advised that the Ministry is aware of developments being undertaken by some district health boards.

The Northern region in particular has been putting effort into this, and the Ministry supports the approach being taken. The region’s intention is to develop a linked health service for transgender people, creating clear pathways for health by putting forward a plan based on collaboration across the region and through levels of community, specialist and hospital health services.

Work to date has included establishing a regional transgender steering group and clinical and consumer advisory group, and appointing a Clinical Lead and Project Manager. A series of consumer workshops have been held across the Auckland metropolitan region, and care pathways and service specifications are being developed. A Northern Region Transgender Health Work Plan has recently been adopted in order to progress this work.

As the Northern region makes progress, the Ministry will encourage other regions to observe this and to strengthen their own regional approach to transgender services.

Thank you for writing.

Yours sincerely

Hon Dr Jonathan Coleman
Minister of Health


United Future Party

I emailed Damian Light, as the United Future Party’s spokesperson for diversity, after seeing him speak at the Rainbow Wellington Election Forum. As well as sending him a version of the same email other parties received, I asked him if he would be able to send me the source for a statement he made during the forum:

I stand to be corrected on this if I’m wrong, but I understand that the waiting list [for GRS] could be cleared for as little as five million dollars by using overseas [surgeons]

Damian Light

He was quick to respond with a link to the United Future Party’s LGBT policy:

Thanks Mark,

As spokesperson for diversity I had the pleasure of launching our policy on 8 August (31 year anniversary of the homosexual law reform coming into effect).

We’ve published it on our website under policies (http://unitedfuture.org.nz/lgbt/) but here are the key points around healthcare;

  • Ensure health providers have appropriate plans, practice standards and funding to responsiveness to the health needs of rainbow communities.
  • Ensure trans and gender diverse people’s access to gender affirming health services based on an informed consent model of healthcare. Where not available in New Zealand, provide sufficient funding to enable timely access.

The $5m detail came from an article online but I can’t find it right now (away from my Pc with all my files used to create our policies).

I’ll try track it down and send it through.

Kind regards,

Damian Light
Party Leader + Candidate for Botany
Spokesperson for Auckland Issues and Diversity

Update 2017/09/10 After following up, I’ve been told that Damian Light hasn’t been able to find the source for the $5m statement. If anyone else knows where this number might have come from, it would be great if you could share a link in the comments or email me about it.


I should also mention that Claire Black has published an article about various parties’ approaches to trans rights as part of Andrew Chen’s A Policy A Day series. Claire looked at the issues of trans healthcare in New Zealand and amending the Human Rights Act to explicitly outlaw discrimination on the basis of gender identity. She also included more of the minor political parties that I haven’t contacted. You can find her article here: A Policy A Day: Trans Rights

* Often referred to as “gender reassignment surgery” or GRS, I prefer not to use this term because of its false implication that someone’s gender can be changed through surgery. Alternatives include “gender confirmation surgery” and “gender affirmation surgery”. I prefer the latter because I think it carries less of an implication that it is somehow necessary for trans people to have surgery in order to “confirm” their gender.

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New Zealand should not regulate naturopaths

New Zealand should not regulate naturopaths

Naturopaths can kill, but regulating them is not the answer.

Over the weekend, the Sunday Star Times published an article by Simon Maude on an unnamed naturopath whose inept attempts at cancer treatment led to the death of an Auckland woman last year: Naturopathy under microscope after cancer sufferers speak from under shadow of death

At the same time, an article syndicated to Stuff from the Sydney Morning Herald detailed a court case in which a naturopath in Australia nearly killed a baby through their dietary advice for the infant’s eczema: Australian naturopath admits ‘raw food’ diet advice endangered baby’s life

As a result, the question has been raised of whether or not naturopaths should be regulated in the same way as medical doctors, pharmacists, and chiropractors.

In the Sunday Star Times article, vice president of the New Zealand Society of Naturopaths Sharon Erdrich laments what she sees as the root of the problem:

New Zealand Society of Naturopaths vice-president Sharon Erdrich says the society wants tighter regulations.

“In Germany, naturopaths are very heavily regulated, there’s regulation in the United States and Australia has some controls.”

Even though there is “potential for harm, basically anyone in New Zealand can call themselves a naturopath,” Erdich says.

(As an aside, Ms Erdrich’s clinic offers such bogus health services as quantum reflex analysis and live blood analysis, and an article she published in 2016 says “The first, and most important thing you can do” if you have cancer is to book an appointment with a naturopath.)

This argument was continued in an editorial in The Press this morning: New Zealand should require naturopaths to be registered

Here is the root of the argument, as expressed in that editorial:

Naturopathy is also enabled by tertiary institutes offering courses which are recognised by the official New Zealand Qualifications Authority framework.

This means that, even though anyone can claim to be a naturopath in New Zealand (there is no law stopping them), practitioners can arm themselves with diplomas and degrees and present themselves as equal to other health professionals.

That being the case, safeguards should be put in place for the public.

The most useful of these would be to require naturopaths to be registered, and made subject to similar disciplinary processes demanded of other health professionals when they can’t make good on their promises.

NZQA approving courses on quackery, such as their Certificate in Acute Prescribing with Homeopathy, is a real problem. But these calls for naturopaths to be registered are missing the point, I think.

The problem is not that “anyone can claim to be a naturopath in New Zealand”; the problem is that naturopathy is quackery. We already have regulation to address quackery, the real problem is that the existing regulation is not adequately enforced. Both the Fair Trading Act 1986 and the Medicines Act 1981 prohibit the misleading claims which are the basis of the practice of naturopathy.

For example, the Fair Trading Act prohibits the use of any “unsubstantiated representations”, as well as “conduct that is misleading or deceptive or is likely to mislead or deceive”, in trade. The Medicines Act prohibits the use of health testimonials (which can be both very convincing and entirely misleading), and claims to treat serious illnesses such as cancer, in advertisements.

The Sunday Star Times article also notes that naturopaths, despite not being subject to specific regulation, are still subject to the Health and Disability Code of Rights:

Regulation is not being considered as the ministry has not received an application from naturopaths to become regulated under the Health Practitioners Competence Assurance Act 2003.

Health practitioners including naturopaths remain subject to the Health and Disability Code of Rights, “whether they are regulated or not”.

Consumers may complain to the Health and Disability Commissioner about care.

The Health Practitioners Competence Assurance Act 2003, which regulates professions such as medical doctors and pharmacists, also prohibits anyone from claiming or implying that they are registered as or qualified to be registered as any type of regulated health professional. This is the provision that could prevent anyone not registered from calling themselves a naturopath.

We have already seen, here in New Zealand, that regulating a health profession prone to making misleading claims does not stop that practice. In research conducted by myself and Mark Honeychurch in 2016, we found that the majority of New Zealand chiropractors who advertise online make misleading claims about what they can treat. Including them in the regulatory scheme has not stopped this behaviour at all, rather it has just allowed them to continue misleading patients from a position of authority, able to use the protected title of “Dr”.

The Health Practitioners Competence Assurance Act sets up authorities to regulate each health profession that is composed of members of that profession. The Medical Council, the Pharmacy Council, and the Chiropractic Board are all examples of this.

But a Naturopathy Board filled with naturopaths would not be able to effectively regulate naturopaths. Quacks can’t regulate quacks effectively. All regulating them would do is give them the appearance of legitimacy and authority.

The real problem with all of this regulation is that it is not enforced. The solution, therefore, should be simple: enforce it.

Pharmacy ethics: Have your say

Pharmacy ethics: Have your say

The Pharmacy Council has opened consultations on a proposed new code of ethics. Following an initial consultation in 2015 where they’d proposed changing one part of the existing code, the council has since decided the whole code could do with a review.

The Pharmacy Council is the regulatory body for pharmacists in New Zealand, set up by the Health Practitioners Competence Assurance Act 2003. As well as overseeing the registration of pharmacists, they are also responsible under Section 118(i) of the Act for setting standards of ethical conduct to be observed by pharmacists.

I met with the Pharmacy Council just prior to the new consultation being opened, as part of my volunteer work with the Society for Science Based Healthcare. They told us that the revised code is intended to be more principle-driven, with associated guidelines that will be able to be updated more easily so as to keep pace with the evolution of the healthcare industry and with new legislation.

As well as these principles, the proposal also includes a draft of the Pharmacy Council Complementary and Alternative Medicines Statement and Protocol for Pharmacists as one of its appendices, and the council is also seeking feedback on this part of their proposal. Here are the consultation questions they’ve put forward, though they note that these are only intended as a guide and submissions can comment on any part of the proposal:

  1. Can you think of any ethical values for the pharmacy profession that appear to be omitted from the revised code?
  2. Considering the explanation of the term “patient” and equivalent terms in the key terms (key terms):

    1. Do you think the term “patient” is the best word to use, most of the time, to express the relationship that exits between the pharmacist and the person they are directly or indirectly caring for or providing health care information to?
    2. Are there any specific clauses where you can think of different term that could be more appropriate?
  3. Considering the new clauses that relate to the sale of complementary and alternative medicines (CAM, clauses 1g, 4h and 4hh): Do you find it clear that the Council is not opposed to the sale of CAM when they have demonstrated benefits for patients, have minimal risks, and the patient is making an informed choice?
  4. Are there any other comments you would like the Council to consider?

In the Society for Science Based Healthcare’s 2015 submission, we stressed the importance of a code of ethics that would effectively protect patients. The context of the original proposed change was a complaint we laid in 2014 regarding an Auckland pharmacy promoting and selling a homeopathic product, in which the Pharmacy Council determined it could not enforce its existing code of ethics:

The council forwarded the complaint to the office of the Health and Disability Commissioner, but both organisations were unwilling or unable to enforce it as this would involve telling a pharmacy which products they can or cannot sell. Neither the Pharmacy Council nor the Health and Disability Commissioner seems willing to enforce a code of ethics when this would involve telling pharmacists which products they can or can’t stock.

The Pharmacy Council’s proposal document notes that the Council “has a duty to protect the public”. A code of ethics which is not enforced may as well not exist. We feel the addition of a new section requiring that sufficient information can be provided to consumers in order for them to make an informed choice regarding whether or not to purchase a complementary therapy is in line with what consumers could reasonably expect. We hope that complaints about potential breaches of this standard would be considered by the Pharmacy Council or another body, so that it can offer some measure of consumer protection.

Our submission will view the draft revised code in this light, looking at it in terms of how effectively we could expect it to prevent patients from being misled in pharmacies.

If this is important to you too, I hope you’ll consider making a submission. As the consultation document notes, submissions can be sent via email to enquiries@pharmacycouncil.org.nz, and (at the time this article was published) submissions will close at 5pm on Friday 18 August 2017.

A Failure to Regulate

A Failure to Regulate

New Zealand has several layers of regulation to protect us against misleading health claims. Sometimes they all fail. My struggle against quackery over the last few years has given me some familiarity with the ways we’re protected against it, and with their shortcomings.

Misleading people about their healthcare options is something that is clearly unethical. To quote the alt text of Randall Munroe’s xkcd comic strip Alternative Literature:

Telling someone who trusts you that you’re giving them medicine, when you know you’re not, because you want their money, isn’t just lying–it’s like an example you’d make up if you had to illustrate for a child why lying is wrong.

Alternative Literature | xkcd

Whether or not someone making misleading health claims knows they’re not true, this is something that can pretty clearly cause harm. At the lower end, a useless health product promoted for something that will get better on its own will cause financial harm. At the higher end, misleading people about their healthcare options could lead them to delay or avoid life-saving medical treatment. In all cases, it involves a violation of the person’s right to make an informed decision about their healthcare.

Our protection

Advertisers

The first line of defence we have against misleading healthcare claims is the conscience of the person making the claims. If no one ever made claims that are misleading in the first place, we wouldn’t need any regulation to deal with it.

In some cases, the advertiser themselves may have been misled, such as a store having been misled by a supplier. Sometimes, as I have written here before, once they are aware they have been misled their conscience may lead them to fix the problem.

Industry bodies

The second line of defence is industry self-regulation. This can take a few forms, such as the codes of conduct of professional societies. Perhaps the most prominent piece of general industry self-regulation in New Zealand is the Advertising Standards Authority (ASA).

The ASA has codes for various types of advertising, including a Therapeutic and Health Advertising Code which requires that therapeutic claims can’t be made in advertising unless you have good evidence to back them up.

The ASA won’t go out looking for non-compliant ads; instead they rely on people submitting complaints to them. The ASA considers each and every complaint lodged with them, and will always act if they agree it’s justified under their codes. If they find that an ad which has been complained about does not comply with their codes, and the advertiser refuses to fix it, the ASA will uphold the complaint.

When the ASA upholds a complaint, they ask the advertiser to remove their ad. However, they don’t have any legal power to enforce this, and there aren’t any penalties for violating the ASA’s codes.

Some industry groups have made a commitment to comply with the ASA’s rulings. For example, the Newspaper Publishers’ Association of New Zealand (Inc) is a member of the ASA. If an advertiser refuses to comply with an ASA ruling, any organisation that is member of the ASA should refuse to publish the ad.

However, many misleading claims are published directly by the advertiser, for example when they appear online on the advertiser’s own website. These advertisers have typically made no such committment to abide by the ASA’s rulings, and the ASA relies on their voluntary compliance.

The law

The third line of defence is legislation. We have laws against various ways in which consumers can be misled, and these are enforced by various government agencies.

The Fair Trading Act 1986 is one of these laws. It has a requirement for substantiation similar to the one in the ASA’s codes:

A person must not, in trade, make an unsubstantiated representation.

Fair Trading Act 1986 Section 12A(1)

This law is enforced by the Commerce Commission. There are some important differences that set the Commerce Commission apart from the ASA:

  • The Commerce Commission has power to enforce the law. Whereas the ASA can only ask an advertiser to withdraw an ad, the Commerce Commission can take them to court.
  • The Commerce Commission will not act on every justified complaint it receives. Instead it will assess them and decide whether or not to take action. Sometimes the decision is made to take no action even if there is a breach of the Fair Trading Act.

Also at this level of regulation is the Medicines Act 1981, which is enforced by Medsafe. The Medicines Act restricts certain health claims, only allowing them to be made for products that have been approved by the Minister of Health to be sold as a medicine for that purpose.

New medicines can be approved through a process in which they must provide evidence of their safety and efficacy. There are also some products that were already around in 1981 when the Act came into effect were “grandfathered” into the scheme and granted automatic approval, regardless of the evidence for them.

Like the Commerce Commission, Medsafe will not act on every justified complaint they receive, even if the Medicines Act has been breached. They prioritise complaints, and in my experience will typically not act unless there is a clear safety issue.

This means that some parts of the Medicines Act, such as Section 58(1)(c)(iii) which prohibits the use of any sort of health testimonial in medical advertisements, can go entirely unenforced.

Consumer advocates

With almost every level of regulation, nothing will happen unless someone complains. The system relies heavily on individual consumer advocates and consumer advocacy organisations. Groups like the Society for Science Based Healthcare (which, to be clear, I’m the chair of), Consumer NZ, and the NZ Skeptics can do what the regulators can’t.

Though we don’t have any powers of enforcement, we can bring issues to the attention of regulators, work to educate and inform consumers, and raise awareness of issues that regulators have failed to resolve.

Such as the ongoing case of the Homeopathy Centre’s misleading advertising…

When it all goes wrong

In March 2015, I was sent a message about an advertorial written by a business called the Homeopathy Centre, which was published in the Christchurch Mail newspaper.

This business was making a lot of misleading claims about homeopathy, both in the advertorial and on their website. They were using pseudoscientific language to convince people that homeopathy is effective:

The carefully selected homeopathic medicine is energetic in nature and can stimulate the vital force, which is not material, but a vibrant energetic structure interconnected with the body and mind.

Homeopathy Centre

The ads also claimed homeopathy could help with a large number of health problems such as insomnia, anxiety, and a “Weak immune system”. The most prominent claim for homeopathy was:

No matter what state of health you are in, you can improve it!

Homeopathy Centre

Advertising Standards Authority

Through my volunteer work at the Society for Science Based Healthcare, I make a lot of complaints about misleading health advertisements.

Almost always, I go to the Advertising Standards Authority first. Misleading health claims are often made by people advertising their own products and services, so dealing with them directly is unlikely to be helpful. On the other side, neither the Commerce Commission nor Medsafe are likely to take action on small things such as misleading claims on the website of a small business. The ASA is a good middle ground, as they will take action on these small things and often end up fixing the problem. But sometimes, even when they uphold a complaint, nothing changes.

I lodged a complaint with the ASA regarding these ads soon after being made aware of them in March 2015. In May, the ASA decided my complaint was justified, and it was upheld.

…therefore the advertisements were misleading, had unduly glamorised benefits of homeopathy and had portrayed unrealistic outcomes.

Consequently, the Complaints Board said the advertisement had not been prepared with the requisite standard of social responsibility.

Complaint 15/137 Homeopathy Centre | Advertising Standards Authority

The advertiser’s response to my complaint was to say they did not plan on continuing the newspaper advertorial, and that they were in the process of making changes to their website “over the next few months”.

Normally, that decision to uphold my complaint would have been the end of it. Most advertisers are responsible enough to comply with the ASA’s rulings in this way. As far as I am aware, the Christchurch Mail did, but that wasn’t the case with the Homeopathy Centre’s website.

Whenever I complain about online content, I set up a change monitoring system that sends me an email if a web page changes. As a result, I am able to see in detail every change made to the pages on the Homeopathy Centre website since I complained two years ago. When I complained, I set up change monitoring for 40 pages on their website, including those directly relevant to my complaint.

Since my complaint in March 2015, only five of these pages have had any changes. Most of these changes are irrelevant, such as a change of address and an increase in their prices. Whatever the changes they’d planned on making to their website, they don’t appear to have happened yet – two years down the line.

I’ve been following up with the ASA to try to get the Homeopathy Centre to comply with this decision since June 2015.

Advertising standards authority, again

In March 2016, when it was clear the promised changes were not forthcoming, the ASA suggested I submit another complaint that they could consider anew and, if upheld, seek compliance on. So that’s what I did.

In July 2016, the ASA upheld my second complaint regarding the Homeopathy Centre website. This time, the advertiser’s complete response to the complaint was a simple attempt to opt out of regulation:

No thank you, I don’t wish to respond

Homeopathy Centre Christchurch

It was abundantly clear by this point that the advertiser had no interest in voluntary compliance. When you make a complaint to the ASA, they ask that you sign a waiver saying that, if they accept your complaint, you won’t take the issue to another authority. So I tried to work with the ASA to help them gain compliance.

New Zealand Council of Homeopaths

I pointed out that Elisabeth Fink, the director of the Homeopathy Centre since 2009, is a member of an organisation called the NZ Council of Homeopaths. According to the Homeopathy Centre website, she has been a member of this organisation since 1987.

This is important because the NZ Council of Homeopaths is another part of that second line of defence I mentioned earlier. They have Rules of Practice that requires, among other things:

Any advertising will not contravene the Commerce Act 1986, the Fair Trading Act 1986, section 58 of the Medicines Act 1981, and must be in compliance with current Code for Therapeutic Advertising of the Advertising Standards Authority.

Rules of Practice | NZ Council of Homeopaths

As the ASA had already ruled that the Homeopathy Centre’s advertising is not in compliance with their current code for therapeutic advertising, this seemed remarkably clear cut. Elisabeth Fink was breaking the rules of practice of a professional organisation she’d been a member of for nearly three decades.

The ASA agreed in November 2016 to get in touch with the NZ Council of Homeopaths to gain compliance via this route. Later that month, I was told the executive members of the council would meet within a week to discuss the issue, and that they were planning to address it with the advertiser.

Then, in February 2017, I had an update:

The NZ Council of Homeopaths has been in touch with the advertiser. Unfortunately they have not been able to make any progress. You have the option of referring the advertiser to Medsafe.

Advertising Standards Authority

Commerce Commission

With this email the ASA released me from the waiver I’d agreed to, which said I wouldn’t take my complaint up with another authority. My experience with Medsafe in the past has been that, unless there is a pressing safety issue, they are unlikely to take any action.

For example, I have a complaint regarding misleading health claims made about “Harmonized Water” with Medsafe that has been “active”, but without any meaningful action, since September 2014.

So I decided to try the Commerce Commission first instead. I’ve had some success with them in the past, where they issued a formal warning against an advertiser of “amber teething necklaces” (which, by the way, don’t help teething in any way and can be unsafe) who had refused to comply with upheld complaints from the ASA.

I lodged the complaint with the Commerce Commission in the wake of their action against Reckitt Benckiser for misleading marketing of Nurofen specific pain products. It was encouraging to have seen Dr Mark Berry, the Commerce Commission Chairman, recently say:

The Commission will continue to take cases where traders do not promote their products truthfully. Products need to be as described on the box, and these were not. We take a particularly dim view when goods for human consumption are misdescribed; especially where pharmaceutical or healthcare products are not promoted truthfully. With these types of products consumers have little opportunity to verify the claims being made and tend to rely heavily on what they are told by the trader. To be able to choose the product best suited for them, consumers must have accurate and reliable information

Dr Mark Berry | Commerce Commission Chairman

This morning, two months after lodging my complaint with them, I have heard back from the Commerce Commission. It was not good news:

Dear Mark

Thank you for the information you provided the Commerce Commission regarding Homeopathy Centre.

We have now completed our assessment of the concerns you have raised and are writing to advise you that we will not be taking any action against Homeopathy Centre at this time.

Commerce Commission

Though this is so far a repeat of what happened with Baa Baa Beads – the Commerce Commission initially decided not to act then later changed their mind – a repeat of that behaviour hardly feels like something to rely on.

What’s next?

Medsafe will be receiving a complaint about Homeopathy Centre shortly, but I don’t honestly anticipate that they will do anything about it. In the meantime, this company will continue to mislead the public about their healthcare options, as they have knowingly done for at least two years now.

The lesson I would like everyone to take away from this story is that a rule is only useful if it is enforced. You can have the best rules in the world, but if they’re not enforced they don’t matter at all. If consumer protection rules aren’t enforced, consumers are not protected.

In this particular case, the ASA cannot enforce its rules, the NZ Council for Homeopaths chooses not to enforce its rules, and the Commerce Commission chooses not to take action. More often, no one complains about misleading claims, so nothing happens.

As a result of all this and more, quackery thrives in our country.

State-Approved Health Fraud Scams

State-Approved Health Fraud Scams

A decades old loophole in New Zealand’s patient protection legislation is letting quacks get away with health fraud, right under the regulator’s nose.

In New Zealand, patients are protected from health fraud scams by the Medicines Act. This legislation, which is enforced by Medsafe, only allows products making strong health claims to be sold if they have been approved by the Minister of Health.

In order to get approved, a medicine needs to pass a rigorous submission process that includes providing robust evidence to substantiate all of the health claims that will be made about it. In this way, patients should be protected against health fraud scams.

Health fraud scams refer to products that claim to prevent, treat, or cure diseases or other health conditions, but are not proven safe and effective for those uses.

Health Fraud Scams – US Food & Drug Administration

Except, there are some products that have this approval but are not been backed up by evidence.

When the Medicines Act came into effect 35 years ago, in 1981, all products that would be covered by the legislation which were already on the market were given automatic approval. This included a bunch of homeopathic products manufactured by the company Weleda.

Weleda, unfortunately, is still in operation today and still sells many of the same products. They operate out of Havelock North, which strikes me as somewhat ironic given their business is based on selling water as medicine. They’re far from tiny, too. In the 2014 financial year alone they made $4.85m in revenue from retail sales.


Usually, when you see a homeopathic product for sale in New Zealand, its marketing materials will be full of weasel words like “supports”. These ads typically manage to imply a whole lot without really saying anything at all.

Support for a healthy heart.

Maintains joint health.

Supports your body’s natural response to winter ills and chills.

Wink wink, nudge nudge.

There are also many cases where this promotion oversteps the generous line set by the Advertising Standards Authority. Myself and others at the Society for Science Based Healthcare work to bring these to the ASA’s attention when we find them, as part of our efforts to reduce the amount of medical misinformation people are subjected to.

Usually this is a pretty straightforward process, especially for homeopathic products. After all, the evidence on homeopathy is abundantly clear:

there are no health conditions for which there is reliable evidence that homeopathy is effective.

Statement on Homeopathy – Australian Government National Health and Medical Research Council

And so are the ASA’s requirements:

Statements and claims shall be valid and shall be able to be substantiated. Substantiation should exist prior to a claim being made.

Therapeutic and Health Advertising Code – Advertising Standards Authority

However, a recent complaint that we’d expected to be as straightforward as previous ones turned out to be anything but. My colleague at the Society for Science Based Healthcare, Mark Honeychurch, submitted a complaint earlier this year about an advertisement for one of Weleda’s products: Weleda Cold and Flu Drops.

The ad for this product on Weleda’s website gave clear directions for its use, which included strong and unambiguous claims about what the product is meant to do:

Take at the onset of cold or flu to relieve symptoms — fever, muscle ache, headache, sore throat, sneezing and runny nose. Take with Weleda Echinacea/Thuja Comp. Active Strength Immune Support for additional effectiveness. Does not cause drowsiness.

Weleda New Zealand

The problem with this ad is, of course, that there’s no evidence that this product can relieve any of those symptoms. Nor is it at all plausible.

That formed the basis of Honeychurch’s complaint. So it was quite a surprise when the ASA ruled to not uphold it, and passed on this response from Weleda:

Weleda Cold & Flu Drops is a registered medicine with Medsafe (TT50-8039) and is permitted to carry therapeutic claims. In relation to the complaint, the recommendations for the product on the website are consistent with the registered packaging indications which are as follows:

  • Take at the onset of cold or flu to relieve symptoms – fever, muscle ache, headache, sore throat, sneezing and runny nose.

Given that the statement on the website is consistent with the registered indications, we consider that the claims do not contravene the Therapeutic Products Advertising Code. We trust that our response resolves this issue.

Weleda New Zealand

Communication with Medsafe quickly uncovered the fact that this approval was granted in 1981, when the Medicines Act came into effect. The issue we identified was that Weleda was using this approval as a substitute for the substantiation required by the ASA’s codes. Under usual circumstances this would make some sense, as Medsafe’s approval typically requires that sort of substantiation. But these are not usual circumstances, and we thought this was a misuse of the approval Weleda had been granted.

Honeychurch sent a list of written questions to Medsafe, to get to the bottom of this and to aid with his appeal to the ASA. Two of his questions were particularly important, in my opinion. The first sought to clarify whether or not Weleda had ever given Medsafe evidence that their product can do what it says on the label:

What substantiation, if any, was used to accept these indications [for Weleda’s Cold & Flu Drops], either when the product was “grandfathered” into Medsafe’s Current registration system, or at any other time?

The product was grandfathered into the current regulatory Scheme following the enactment of the Medicines Act 1981. Products that were eligible for grandfathering were those that were already marketed in New Zealand and had a demonstrated history of safe use. For grandfathered products, the date of approval was deemed to be the earliest date of market availability provided by the product owner.

The product was originally indicated as a homoeopathic medicine for all types of influenza and Colds. These indications Were accepted at the time.

Subsequent to the original approval under the Medicines Act the indications have been modified in 2007 and 2014. The modified indications have been accepted as they are all encompassed by the Original appoval.

Medsafe

The lack of a clear answer from Medsafe here is frustrating. As far as I can tell, their answer means Weleda demonstrated that their product had a history of safe use, and provided the earliest date of its market availability. But it also seems Weleda never gave Medsafe any evidence to support the claims made about the product’s efficacy.

The other important question Honeychurch asked regarded the scope of the problem. Although this was the only homeopathic product we’d found to have been approved by Medsafe, it seemed unlikely to be the only one that exists.

What other Weleda products, and homeopathic products from other manufacturers, are registered with Medsafe as medicines, and what indications are there for each of them?

You can search for Weleda’s approved medicines that have been transferred into the therapeutics database using the search function above [http://www.medsafe.govt.nz/regulatory/DbSearch.asp] and entering Weleda into the sponsor box. Please note that products in the database are those which have undergone regulatory activity since being grandfathered.

Weleda also notified over 1000 homoeopathic medicines to be grandfathered. The approved product details are only held in hard copy files. Many of the products are intended to be supplied to practitioners of homoeopathy or direct to patients through speciality retail stores.

Providing the requested information would require extensive research and collation and Cannot be Completed within the timeframe you have indicated as necessary for your to lodge an appeal to the Advertising Standards Authority.

Medsafe

As a lower estimate of the number of health fraud scams approved by Medsafe, “over 1000” is a pretty scary number.

So what is there to be done about it?


Honeychurch started by submitting an appeal to the ASA, hoping the answers he’d recieved from Medsafe would be enough to overturn the decision. After all, the decision should hinge on the assumption that Medsafe’s approval of Weleda’s products implies the substantiation required by the ASA’s codes, and that assumption appears to be false.

But the ASA instead ruled to maintain their original decision. This ruling was released today, and makes for interesting reading. For example, this part of Weleda’s response clarifies that they truly have never had to submit evidence of efficacy for their products, simply because they have been sold for a very long time (emphasis in the original):

Weleda accepts that Weleda Cold & Flu Drops was ‘grandfathered’ into the current medicines registration system following the enactment of the Medicines Act 1981 (which replaced the Food and Drug Act 1969 which in turn replaced the Food and Drugs Act 1947. Cold and Flu Drops received ‘default’ approval as a medicine on 31 December 1969, three months before the Food and Drug Act 1969 came into force on 1 April 1970. This ‘grandfathering’ process however was applied to all relevant products at the time, including what may be called ‘conventional’ medicines. There was no favouritism toward one type of medicine or another and there was no requirement to (re-)submit evidence of efficacy to be registered.

Weleda New Zealand

The rest of their response makes it seem pretty clear to me that they’re using this historical approval as a shield to stop the ASA from requiring they provide robust evidence of efficacy that simply does not exist:

In the absence of a statutory or regulatory requirement under either the Food and Drug 1969 [sic] or the Medicines Act 1981 for Weleda to freshly prove the efficacy of our Cold & Flu Drops, we do not accept that it is open to M. Honeychurch to demand we do so by way of this proceeding — particularly when they have provided no evidence to support the view that Cold and Flu Drops has no efficacy.

Weleda New Zealand

And if that all wasn’t clear enough, Medsafe also weighed in on the issue of whether or not substantiation had been supplied by Weleda (this time the emphasis is mine):

The ‘approval date’ published on the Medsafe website in relation to this product (and most Weleda products) indicates approval at 31 December 1969. This means that these products were determined to have been legally on the market prior to the commencement of the Food and Drug Act 1969 and could continue to be marketed under the current legislation, with the same indications. Proof of efficacy is not held by Medsafe.

Medsafe

In my opinion, the decision the ASA should have been making should have been “does this advertisement breach our codes?”. Indeed, this is the question they usually ask when dealing with a complaint, and the fact that advertisements that breach their codes might not be downright illegal isn’t usually enough to stop them from upholding a complaint. But for some reason they’ve decided this case is different:

In relation to the complaint before it, the Appeal Board considered the key issue was a matter outside its jurisdiction, namely the process agreed to with the regulator during a change to legislation some decades ago.

The appeal Board noted the position of the Complainant with regard to the ‘grandfathering’ of certain products but agreed this was a matter that should be raised directly with Medsafe.

Advertising Standards Authority


The “grandfathering” process that allowed these hundreds of ineffective health products to get a free pass seems to have been intended to keep low risk products on the market, regardless of whether or not they are effective. With the unfortunately named Natural Health Products Bill lined up to wrap some much needed patient protection legislation around the area of low risk health products of dubious efficacy, it might seem like a great time for these “grandfathered” products to be transferred into that framework.

Unfortunately, the proposed regulations associated with the Natural Health Products Bill explicitly exclude homeopathic products from their rules. In our dealings with Medsafe, time and time again I have come away with the clear impression that they only care about safety issues. So long as a health fraud scam is safe, Medsafe is content to do nothing about it.

Magic water? Sure, it’s just water. What’s the harm?

I can certainly see the justification for that. Safety issues are typically more pressing than low risk products that are only doing more indirect harm like causing people to delay effective treatment, putting strain on finances, and damaging public health literacy. Often it’s entirely appropriate for Medsafe to rely on our first line of defence – the Advertising Standards Authority – to deal with misleading health claims. But when that fails, something needs to be done.

There is an ocean of health fraud scams in New Zealand. It’s high time the regulator responsible for enforcing our patient protection legislation started giving a damn about it.

We’ve got in touch with Medsafe to request a meeting in the new year, to discuss what path there might be for addressing the issues I’ve touched on here. While I’m hoping for the best, I’m not holding my breath.

Steffan Browning Leaving Parliament

Steffan Browning Leaving Parliament

Steffan Browning will leave his role as an MP next year, which is a great opportunity for the Green Party to ditch their anti-science baggage.

I have a love-hate relationship with the Green Party. I love their social policies, but as someone who dedicates a lot of my time to fighting pseudoscience I have a hard time justifying support for a political party with anti-science tendencies.

In the lead up to the 2014 general election, when I was considering where I would place my party vote, I emailed the Greens’ then health spokesperson Kevin Hague with some questions about Green Party health policy.

Hague’s response satisfied me that, despite the party’s reputation, references in their health policy to being evidence-based were more than just lip service. I voted for them.

Then, just a month later, Green MP Steffan Browning went and endorsed homeopathy as a treatment for ebola.

Luckily, the response from Green Party leadership was pretty good. Browning’s “Natural Health” portfolio was taken away from him and folded into Hague’s health portfolio, after which then co-leader Russell Norman was pretty clear:

It’s not something we support and it’s not Green Party Policy.

Green MP regrets call to treat Ebola with homeopathy – One News

The Green Party was awarded two awards by the NZ Skeptics at their 2014 conference. One, the Bent Spoon award, goes each year to “the New Zealand organisation which has shown the most egregious gullibility or lack of critical thinking in public coverage of, or commentary on, a science-related issue”. In 2014, it went to Steffan Browning.

But they also chose Russell Norman for a Bravo award

for quickly responding to Steffan Browning’s comments and stating that this was not something the Green Party would support as they take “an evidence based approach”.

Bravo Awards – NZ Skeptics

After this wobble, it looked like the Greens had recovered and maybe taken another little step away from their anti-science past.

But since then both Russell Norman and Kevin Hague have left the Green Party. Though they are by no means the only great people in the Greens, I feel they had shown themselves to support evidence-based policy. I’ve been worried for some time now that it might signal a return to the Greens’ anti-science past, especially as Steffan Browning still held their GE portfolio despite his anti-science views on that topic.

The Greens’ reputation took another blow in my mind this year, as I discovered when researching DHB candidates for links to quackery that the Greens were backing Sue Kedgley in her stand for the Wellington City Council and the Capital & Coast DHB.

I felt strongly enough about this that I wrote to the Greens to express my disappointment.

When Steffan Browning put his foot in it soon after the election by supporting homeopathy for ebola, I worried I might have made the wrong choice. But the swift reaction from the party’s leadership again convinced me I’d done the right thing.

Now I see that the Greens are supporting Sue Kedgley as one of their candidates for Wellington City Council. I’m really, really disappointed about this. And it makes me worry for the party’s future.

I’m sure you’re aware of Ms Kedgley’s history of being on the wrong side of scientific evidence, especially when it comes to healthcare. I know I am. I have seen her be an anti-vaccine scaremongerer, try to get quackery like homeopathy integrated into the medical system, oppose safe and effective food biosecurity technology like irradiation, and misleadingly call smart meters a “threat to health“. I could go on and on; there seems to be no shortage of opinions Ms Kedgley has espoused that are at odds with the scientific consensus.

With Kevin Hague now leaving the Greens to his new role at Forest & Bird, seeing this makes me very concerned about the current direction of the Green party. Steffan Browning still holds his GE portfolio despite his unscientific views in that area, and the party is throwing its weight behind a city council candidate like Sue Kedgley. It makes me think perhaps the Greens aren’t the evidence-based party I hoped they could be.

Mark Hanna

Unfortunately, Kedgley has now been re-elected to both the Greater Wellington Regional Council and Capital & Coast DHB


With all this context, I hope you can all understand why I’m happy to hear the news today that Steffan Browning is not seeking re-election in 2017.

This could be a great opportunity for the Green Party to shed their anti-science baggage and commit themselves to becoming the evidence-based party that many people, including myself, want them to become.

A good start would be re-addressing their stance on GE technology to align it more closely with scientific evidence.

But also, I feel like the time has come for the Greens to cut ties with Sue Kedgley. She hasn’t been on their list since 2011. Although Browning is stepping down as a Green MP voluntarily, this is a chance for the Greens to move past their anti-science past by cutting ties with Sue Kedgley.

Here’s hoping that, in 2017, they will be an evidence-based option.

Bad Science Case Study: Dog Bones

Bad Science Case Study: Dog Bones

The New Zealand Herald and Jimbo’s have provided us with an idealised “bad science” case study.

Today, the Herald published an article about a “trial” published by pet food manufacturer Jimbo’s: No bones about bones

The trial was intended to evaluate how eating bones affects the dental health of dogs. Thankfully the article makes it pretty clear why Jimbo’s would be looking into this, although it reads more like a quote from a press release than the declaration of a conflict of interest that it really is:

Jimbo’s sells over 300 tonnes of bones per year which help thousands of cats and dogs keep healthier teeth.

This trial seems rather special in that it’s a rare composite of just about every aspect of poor methodology all put together at once. I think it makes for an excellent “bad science” case study, which could hopefully be a good resource for journalists who might find themselves in danger of reproducing the Herald’s results.

And it’s not just journalists that can benefit from understanding this. Being aware of the potential shortcomings of research can make everyone more savvy when it comes to parsing science news. None this is particularly hard to understand at a high level.

Pared way down, designing a study is about two things:

  1. Finding a way to test a hypothesis by attempting to disprove it.
  2. Taking measures to account for as many sources of bias as possible.

Jimbo’s failed the first of those objectives spectacularly, but at least they were up front about it:

The Jimbo’s Dental Trial was carried out because we wanted to prove what we already knew – that a species-appropriate diet including a bone a day can improve or maintain dental health in our furry friends.

Jimbo’s Dental Trial – 2015

It’s roughly possible to pair up different aspects of good methodology to the source of bias they’re trying to account for. For example, having a large sample size is a way to diminish the effects of random variation within your sample population.

Here’s a list of the methodological problems with this Jimbo’s trial, and the corresponding sources of bias that they aren’t accounting for:

  • Source of bias
    Publication bias, where positive results are more likely to be published than negative results.

    How you should account for it
    Register your trial ahead of time, and ensure it gets published in a peer-reviewed scientific journal.

    What Jimbo’s did in their trial
    As far as I can find, the trial wasn’t pre-registered. Instead of being published in a peer-reviewed scientific journal, it was published as a PDF on the Jimbo’s website.

  • Source of bias
    Random variation within your sample population.

    How you should account for it
    Have as large sample size as possible. Of course larger sample sizes makes research more expensive, but if your sample is too small you won’t be able to reliably detect an effect.

    What Jimbo’s did in their trial
    The study used a sample of eight dogs. This was further reduced to seven after one dropped out for not following the diet.

  • Source of bias
    Regression to the mean, changes unrelated to the experiment, Hawthorne effect etc.

    How you should account for it
    Have an appropriate control group, for example a group of dogs not on the special diet.

    What Jimbo’s did in their trial
    The study did not include a control group.

  • Source of bias
    Bias, unconscious or otherwise, from researchers making measurements.

    How you should account for it
    Blind researchers making measurements so they don’t know whether the participant they’re evaluating was in the control group or the experimental group.

    What Jimbo’s did in their trial
    There was only an experimental group, so blinding was not possible.

    2016/10/30 Edit: Thomas Lumley has made a good point about blinding over on StatsChat. That is, the researcher evaluating the photos could have been blinded to whether each one was a “before” photo or an “after” photo. The study doesn’t mention if this was done, however.

  • Source of bias
    Differences between the populations in the control and experimental groups.

    How you should account for it
    Randomise which group each study participant ends up in.

    What Jimbo’s did in their trial
    There was only an experimental group, so randomisation was not possible.

The trial also lacked any sort of statistical analysis. Without a control group, there isn’t really a good way to do this, but it seems like Jimbo’s didn’t even try to figure out how likely it was that their result was a false positive.

I always find it amusing to see research that fails so spectacularly to be well-designed, as this has, but there’s a downside as well. This was picked up completely uncritically by the New Zealand Herald. In fact their story reads to me more like an advertisement or press release than the critical analysis I’d expect to see from a high quality media outlet.

Although in the end, the Herald did one thing right. They provided a link to the original research so all of its readers could see for themselves how spectacularly bad it is.