Some rules need to change

Some rules need to change

Content note: This article discusses transphobia, and includes examples of it.

I’ve always been big on rules. When I was a kid, I had a lot of trouble grasping the idea that there was a difference between “right and wrong” and “following the rules”. My parents used to quip that I’d probably grow up to be a lawyer.

I don’t think the idea that some rules are just wrong really clicked for me until my early twenties. I’m sure the transition was far more gradual than I recall, but I can remember one moment that certainly feels like a turning point in retrospect.

When I was 21, my partner at the time complained to me about a set of traffic lights that turned red far too quickly, and as a result many people would just drive through after they had turned red. A younger me probably would have said something judgemental about it being wrong to run red lights, but instead I said I thought the lights should be changed because they obviously weren’t working.

Though I came to it fairly late, this idea that rules — including the law — aren’t always right has very much solidified in my mind since then. I’ve also learned a lot about how to work within systems of rules, which any long-time readers will surely have seen in my writing on topics such as the Advertising Standards Authority and on the Official Information Act.

One set of rules that I think currently needs to change is the Births, Deaths, Marriages, and Relationships Registration Act (BDMRR Act). One of the things regulated in this law is the process through which someone can change the sex marker on their birth certificate.

Currently, changing the equivalent marker on other official documentation, such as a driver licence or a passport, is a pretty sensible process. It only requires a statutory declaration. Changing the same marker on a birth certificate, however, is a challenging and inaccessible process that requires medical intervention and the family court.

If you see any claims that the Media Council — in its ruling discussed below — found the article was exonerated in this respect, or that they found the article was not discriminatory, I hope you’ll keep in mind the precise wording of the rule that the “not upheld” ruling refers to.

Thankfully, there is a bill currently before parliament that to update this law. It went through the standard consultation process a year ago, receiving over 500 submissions.

468 of those submissions were sent in by the Green Party (they can be read here and here), who conducted a campaign they called Documents with Dignity to collect submissions from people who backed their call for the process for correcting the sex marker on a birth certificate.

You can peruse all submissions received on the bill on the Parliament website, including my submission in support of streamlining the process for correcting birth certificates.

In August 2018, after the consultation period was finished, the Governance and Administration Select Committee published their report on the bill. They proposed adding changes in the bill that would allow the sex marker on a birth certificate to be corrected on the basis of a statutory declaration, as well as including the option of “intersex” and “X (unspecified)” for this marker.

These suggestions seemed to have the full support of the committee, which I think is significant in this context. The National Party has historically held more conservative stances regarding the rights of gender and sexual minorities: 92% of National MPs voted against Homosexual Law Reform in 1986, and 54% of National MPs voted against the Marriage (Definition of Marriage) Amendment Bill at its third reading in 2013. However, the reported noted that the National Party members on the select committee “do not wish to stand in the way of reform of self identification of nominated sex on birth certificates”.

Over recent months, an anti-transgender group opposing the proposed changes in the BDMRR Bill, calling itself “Stand Up For Women”, has been complaining that there wasn’t adequate consultation on the bill and encouraging fellow TERFs to contact members of parliament to express their disagreement.

If you’d like to know more about the proposed changes, and what you might be able to do to help improve things for trans people in New Zealand, you can have a look at the Right to Self ID website (for full disclosure, I helped to proofread the template letter on this website) or this page set up by Gender Minorities Aotearoa to provide an overview of what these changes will mean.


If you look through the list of submitters on the BDMRR Bill, you might notice something odd. A bunch of the submitters’ names are prefixed with “Miss” or “Mrs”.

The reason for this is, sadly, bigotry against transgender people. Particularly against transgender women.

Many of the people who submitted on the bill believe, wrongly of course, that transgender people are all incorrect about their gender. Those who subscribe to this ideology are commonly referred to as TERFs – Trans-Exclusive Radical Feminists. Over the past few years, many of them have come to strongly object to that term, so it’s worth knowing that if you see someone describe themselves as “gender critical”, they’re almost certainly referring to the same trans-exclusionary ideology.

This ideology is what those submitters have alluded to by prefixing their names with “Miss” or “Mrs”. The idea is that, by using this title, they are signifying that they are “real” women. They consider this to contrast (again, wrongly) with transgender women, who they do not believe are women.

You can find other varieties of this tactic online, for example by looking at TERF accounts on Twitter. For example, some will include “XX” in their username, referencing sex chromosomes, in a nod to their ideology. Some others include text or images of their definition of woman (typically they use the wording “Adult human female”) in their bio or avatar, for similar reasons.

These are implicit versions of a much more explicit rhetorical technique often used by TERFs, which is to outright say that a trans person’s gender is not what they say it is. They will often do this by refusing to use appropriate pronouns to refer to someone, for example referring to a trans woman as “he” and “him”. This tactic is known as misgendering.


I wish I could tell you that this sort of gross and disrespectful bigotry was limited to the basements of the internet, but I can’t. Last year, the New Zealand Herald published an article on the BDMRR Bill by one of their opinion writers, Rachel Stewart, and it included a lot of misgendering.

(I don’t want to raise the platform of the bigoted statements made in her article, so I’m not going to the link to it. If you really want to find it, you can go searching.)

Myself and another complainant, whose name I have also redacted below in an effort to protect them from harassment, independently lodged complaints about the article. These went first to the editor of the NZ Herald and then to the Media Council, in November 2018.

Today, the Media Council has published their decisions on these complaints on their website. My complaint was not upheld, whereas the other complainant’s was upheld in part.

Unfortunately, the part of their complaint that was upheld is nothing to do with the bigotry expressed in the article. Rather, it is about this paragraph, which was misleadingly put forth as a statement of fact:

Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of human biology, and Big Pharma stands to make a fortune. It’s already started.

Rachel Stewart

Because that complaint was upheld, the Herald has now had to publish a note at the top of the article regarding the ruling. They have also published a note about the ruling on page A14 of today’s paper.

My complaint focussed on a different issue. I’ve included my complaint and all responses at the bottom of this article, so scroll down if you’d like to read them. Please note that I have redacted a person’s name from my article, including where I quote Stewart using it, so that repeating her statements here won’t add to the online abuse already aimed at this person.

As far as I’m aware, the Media Council (formerly known as the Press Council) is really the only system of oversight that can hold mainstream media to account in New Zealand. Like the Advertising Standards Authority, it’s an industry body of voluntary regulation. The NZ Herald is one of the Media Council’s paying members, and has agreed to abide by its rulings.

However, the grounds on which the Media Council will hear a complaint — its Principles — are quite limited. They are mostly what you would expect, setting in place requirements around things such as accuracy, clearly distinguishing between comment and fact, and declaring conflicts of interest.

The closest they have to a Principle that deals with this kind of bigotry is Principle 7, which regards Discrimination and Diversity. However, this rule only restricts some very specific behaviour:

Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas. Publications should not, however, place gratuitous emphasis on any such category in their reporting.

Media Council

The Media Council’s principles give no grounds under which I could argue Stewart’s column should be censured because it is harmful, or bigoted. I could only argue that it places “gratuitous emphasis” on transgender people, but this is not a commonly used or clearly defined phrase.

Honestly, because they don’t really have a rule for it, I did not think the Media Council was very likely to uphold my complaint. I already knew going into this that they rarely seem to uphold any complaints. I’ve written in the past, for example, about a complaint of mine that they did not uphold, which I still think was a bad decision on their part.

Thankfully, I don’t think my complaint needed to be upheld to send a message to the editorial team at the Herald that this is not acceptable. That’s why I included several references to NZME’s published commitments to inclusion and diversity in my complaint, even though they would not be directly relevant to the Media Council.

I hope my message has been heard.

This short saga has also made me think that, like the BDMRR Act, the Media Council’s rules may need to change. Though they do have a rule in place that appears as though it is intended to protect vulnerable groups from harm, I think the Media Council’s decision that Rachel Stewart’s transphobic article did not breach this rule goes to show that it is not fit for purpose.

This paragraph, quoted from my complaint, gives some context to the concerning precedent that may have been set by the Media Council’s decision here:

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

Mark Hanna

If the Media Council will not be able to protect minority groups from bigotry in the media, then it is up to editors to refuse to publish that bigotry. I think the NZ Herald editor who wrote the paper’s response to my complaint got it exactly right here in his initial response to my complaint:

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor.

David Rowe, NZ Herald


Complaint documents

My initial formal complaint to the New Zealand Herald:

Tēnā koe,

I am writing to you to lodge a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website today, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

Put bluntly, the article is horrendously transphobic. It is harmful, and I think the decision to publish it was incredibly irresponsible.

Stewart’s transphobic views have been widely known for some time now, in no small part due to her expressing them openly on social media. Just two weeks ago, for example, in response to positive coverage on Stuff of a transgender person who is not a woman, Stewart tweeted a link to the article along with this message:

“Have read this, and I need a cold compress & a lie down in a darkened room. I’m sorry, but I cannot partake in the delusion that this pregnant woman is a man. Not because I’m transphobic (I’m not), but because I recognise when people need psychiatric help.”

I’m not sure if you’re familiar with the concept of misgendering: referring to a transgender person as though they were of a different gender, commonly through the use of inappropriate pronouns like using “he” when referring to a woman. It’s a common tactic among transphobic people meaning to deny transgender people’s genders. For many transgender people it is used against, it can be very distressing.

In her article today, Stewart repeatedly uses this tactic, both against imagined transgender women and against [name redacted], with clear intention to falsely imply that they are men. Examples include:

“the current craze of people – overwhelmingly men – who say they were born into the wrong body”

“Under the proposed new law, a man can call himself a woman without ever medically transitioning (most never do) and insert himself in female-only spaces such as changing rooms, women’s refuges, and prisons.”

“a grown male stranger naked in the changing rooms at her local swimming centre”

“How about [name redacted] competing straight-faced as a female in [sport redacted]?”

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

I do not see any reason why that same bare minimum level respect should not be extended to transgender people. They certainly deserve it, and I would have hoped that would be clear to everyone working at the Herald.

Just over a year ago, NZME issued a press release proudly proclaiming that they were “the first media company in New Zealand to be awarded the Rainbow Tick, acknowledging its active effort to be a diverse, innovative and inclusive organisation.” (http://www.scoop.co.nz/stories/BU1710/S00268/nzme-awarded-rainbow-tick.htm)

The press release went on to discuss NZME’s Inclusion and Diversity strategy, saying it encouraged employees to “bring your whole self to work”. After this, NZME adopted rainbow branding in celebration of its Rainbow Tick accreditation.

The decision to publish Rachel Stewart’s transphobic article today clearly flies in the face of any commitment NZME might have had to encouraging diversity. I don’t know how any transgender person working at NZME could be comfortable with the decision to publish it, and I hope it hasn’t been too distressing for them.

This sort of transphobia existing in the darkest corners of social media is bad enough, but it’s quite another thing for it to be published in the country’s most widely read newspaper. Intentionally or not, the decision to publish Stewart’s transphobic views there comes with clear tacit endorsement of them. I can only imagine how distressing that decision must be for any transgender people working at the Herald, or who may hope to one day work there.

To my reading, the Media Council’s principle on “Discrimination and Diversity” is not clear where it stands on this point, noting only that publications should not “place any gratuitous emphasis” on issues of gender or minority groups. Whether this opinion piece falls afoul of that principle or not, I hope on reflection you will agree with me that it should never have been published. The fact that it was published as an opinion piece is not sufficient justification for its bigoted content.

The impact reporting has on people is important. The Herald has published some great work with a good, positive impact on people. The work done by Herald journalists on the mistreatment of Ashley Peacock is a great example on this. But for the Herald to take credit for that, it must also take responsibility for the harm done by other reporting.

I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.

Ngā mihi,
Mark Hanna

The response I received from the NZ Herald:

Kia ora Mark,

Thank you for your email.

I apologise for the unintended offence caused to you by Rachel Stewart’s column.

Stewart’s piece is clearly a very personal view of a very difficult issue. It is clearly marked as her opinion.

In the column, Stewart argues that fundamentally, “all human beings – including trans peoples – deserve human rights and respect”.

However, she feels that the adoption of the term “Terf” has been used to shut down debate on the issue of transgender rights – which is important given proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

She takes issue with the use of the term by a Member of Parliament, Louisa Wall.

Stewart raises concerns about changes to the law, which she feels have been difficult to debate in the present climate.

Stewart acknowledges some of the scenarios she describes in the column are fanciful:

“Look I’m trying to make light of this stuff because no other approach has our government listening.”

Stewart’s discussion of the funding of transgender groups and the role of Big Pharma is posited as a theory to answer a question: “When movements gain full throttle as rapidly as the trans train has, it must be asked, who stands to gain from it?”

While some of the language used by Stewart is confronting, it is important that difficult issues can be freely debated. In this case, it is one which has drawn strong comment from an elected MP and relates to an impending law change.

The issue has emerged out of the debate about the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

Part of the brief of a columnist is to comment – often provocatively – on social issues and attitudes. They have licence to push the boundaries of what might be considered “polite” or politically correct in everyday conversation.

While causing offence is certainly not the intention, it is almost an inevitable consequence of a cutting-edge columnist.

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor. As such, I can assure you an editor does not publish such comment lightly.

The easier course is, naturally, to censor anything that might be seen to be controversial: it would certainly make an editor’s life less troublesome. However, the easy course is not at always the best course, and an editor must always be mindful of a duty to protect freedom of speech and provide a plurality of opinion.

We note, too, that the NZ Media Council has ruled that readers do not have the right to not be offended.

“No-one is forcing the complainant to read that column or even that newspaper or website.” The reader has a right to ignore a columnist and hold different views, the council says, but that does not mean they have the right to stop the columnist expressing theirs.

In response to Rachel Stewart’s column, we have welcomed a contrasting view from Louisa Wall, which can be read here:

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

You are also welcome to make your own views publicly known in a letter to the editor to be considered for publication. I have included the submission guidelines below.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My escalation to the Media Council:

Tēnā koutou,

I am writing to you to escalate a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website on 2018-11-28, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

On the day it was published, I sent a formal complaint to formalcomplaints@nzherald.co.nz. The next day, I received a response from the editor. I have included both of these messages at the bottom of this email.

I was disappointed to find that the response I received from the editor did not directly address any of the issues I had raised in my complaint. Since having received this response, I have become aware that an identical response was also sent to others who lodged complaints about the same article. I have heard from other complainants that their complaints dealt with substantially different aspects of the article, but that these issues they raised were also not dealt with by the identical response they received from the editor.

As well as the issues raised in my original complaint, I would like to address parts of the response I received from the editor.

The editor highlighted the disclaimer included at the end of Rachel Stewart’s article that “all human beings – including trans people – deserve human rights and respect”.

I have a background in anti-quackery activism. Over the past few years, I’ve lodged dozens of complaints with authorities such as Medsafe and the Advertising Standards Authority regarding misleading health claims in New Zealand advertising, as well as writing about the various forms of regulation around this issue in New Zealand and where they fall short. One feature that comes up again and again in this context is the false disclaimer. In the context of misleading health claims, it typically takes a form like this:

“Our product can cure cancer.

We don’t make any claims that our product can treat or cure any disease.”

You might be familiar with false disclaimers in other contexts, such as in the case of sentences starting with “I’m not racist, but”.

I believe the disclaimer at the end of Rachel Stewart’s article is a false disclaimer of this nature.

Stating that she believes trans people deserve human rights and respect does not somehow negate the lack of respect she shows in the intentional misgendering in her article, which I detail in my complaint.

Nor does this false disclaimer negate her campaigning against the rights of trans people, such as her signing of a letter written by a group dedicated to challenging and undermining the rights of transgender people in New Zealand, which seeks to write biological essentialism – the philosophy underlying the incorrect view that trans women are really men – into law.

The response I received from the editor also has a focus on offence, including what is commonly known as a “not-pology” of the form “sorry you were offended”, which implies all responsibility falls to the person receiving the apology.

At no point in my complaint did I raise offence as an issue. Rather, I explained that publishing bigotry on this level does harm. As I stated in my original complaint, “for the Herald to take credit for [reporting that has a good, positive impact on people], it must also take responsibility for the harm done by other reporting”.

Regarding the Media Council’s principles, as expressed in my complaint to the Herald, I unfortunately find the wording of the principle regarding Discrimination and Diversity to be confusing and unclear. It notes that publications should not “place gratuitous emphasis on any such category [of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability] in their reporting”. However, I am not sure what is meant by “gratuitous emphasis”, or where the line might fall.

I would hope that you will agree with me that the publication of bare-faced bigotry such as what was seen in Stewart’s article should not be acceptable under the Media Council’s principles. As I expressed in my complaint to the Herald, I do not believe it would be seen as acceptable to publish a similar level of bigotry were it aimed at gay, lesbian, bisexual, intersex, or asexual people. I do not see any reason why that standard should be different for transgender people.

I note that, since my complaint, the Herald has published a response by Louisa Wall, and they have also published a small correction to one part of Stewart’s article that was factually incorrect. I do not believe either of these responses deal with anything that I have raised in my complaint, and I stand by my recommendations for how the Herald should proceed:

“I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.”

Thank you for considering my complaint.

Mark Hanna

The NZ Herald editor’s response to the Media Council:

Dear Mary,

Thank you for the opportunity to respond to these complaints. I will address both complaints in this response, as they touch on similar issues and relate to the same Media Council Principles.

Both Mark Hanna and [name redacted] argue that the column “TERF a derogatory term to shut down debate”, by Rachel Stewart, breaches Principle 7 – Discrimination and Diversity. [name redacted] argues the column also breaches Principle 4 – Comment and Fact – and likely Principle 5, Columns, Blogs, Opinion and Letters.

While I understand the concerns expressed by Mr Hanna and [name redacted], I do not agree that the column is in breach of Media Council principles.

The column needs to be judged as a whole, and in the context of a wider debate.

The article is an opinion piece and is clearly labelled as such. It is a response to comments made by a publicly elected Member of Parliament, Louisa Wall, in which she was recorded saying: “I don’t want any f***ing Terfs at the Pride Parade.”

The column is also written in the context of proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

Stewart argues that the use of the term “terf” – or trans-exclusionary radical feminist – is being used to shut down debate on the issue.

It emerged out of the discussion surrounding the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

While there had been some reporting on the Births, Deaths, Marriages and Relationships Registration Bill, it had been limited, with little coverage of dissenting voices.

In Britain, a similar discussion is taking place about reforms to its Gender Recognition Act to allow people to self-identify and has been the subject of far more extensive media coverage.

That why it is important Stewart’s views should be allowed to be heard.

[Name redacted] argues Stewart breaches Principle 4 – Comment and Fact when she writes: “Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of basic human biology, and Big Pharma stands to make a fortune.”

It is a matter of public record that Buffett and Soros have funded, through charitable foundations, transgender groups in the United States. While it could be argued Stewart is drawing a long bow to the potential gains made by pharmaceutical companies, exploring such a theory is not in itself a breach of Media Council principles and I believe there is sufficient information available online and elsewhere for readers to make up their own minds.

I strongly reject [name redacted]’s claim of anti-semitism in Stewart’s column. Mentioning Soros as being among billionaires to have donated to transgender lobby groups does not prove such a claim. His ethnicity or religious background is not relevant and is not mentioned. The statement certainly does not place “gratuitous emphasis” on a protected group.

[Name redacted] also argues that the following paragraph breaches Principle 4:

“I don’t know about you, but I wouldn’t want to be locked up alone in a cell all night with a hairy, muscly, sex-starved inmate of either gender – but particularly one with his full kit and caboodle intact.”

This is clearly Stewart’s personal view, and not a factual assertion that “trans women prisoners will be rapists”, as [name redacted] says.

I also disagree that the statement breaches Principle 7 – Discrimination and Diversity. The principle holds that: “Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas.”

While the language used by Stewart is confronting, she is expressing personal views that reflect her own fears. Unacceptable as they may seem to many readers, some of her concerns are shared by others. Given that these opinions relate to an impending law change, I believe it is relevant and in the public interest to express them.

I do not agree that the column is in breach of Principle 5 – the article is clearly identified as an opinion piece. I not believe the requirements for a foundation in fact have been breached. We did acknowledge one factual error in the piece – relating to the earliest age at which certain medical treatments are given to children. This was corrected both in print and online and does not undermine Stewart’s fundamental arguments.

In his complaint Mr Hanna, refers to a letter signed by Rachel Stewart and comments made earlier on Twitter. Neither is relevant to the complaint – the column must be judged on the words within it.

Mr Hanna argues that Stewart is guilty of misgendering. The Herald agrees that transgender individuals should be referred to by the gender by which they live, and that is our reporting policy.

However, when Stewart uses the pronouns in the paragraphs quoted she is talking in general terms and about hypothetical scenarios under the new law, not about transgender individuals. The reference to [name redacted] does not use such a pronoun.

Mr Hanna disregards Stewart’s conclusion in her column as a false disclaimer, however I don’t think it can be dismissed outright and must be considered as part of assessing the column: “I believe all human beings – including trans people – deserve human rights and respect. What I don’t believe is why anyone questioning the obvious dangers lurking within the proposed new law, should equate to them not being afforded the same.”

Mr Hanna mentions NZME’s Inclusion and Diversity strategy and its Rainbow Tick accreditation. He argues that publishing Stewart’s views is a tacit endorsement of them.

This is incorrect. The Herald aims to be a broad church of opinion, and publication of an opinion is certainly not an endorsement of that viewpoint.

It is NZME’s policy to be inclusive and diverse in all of our operations, actions, policies and procedures.

However, we do need to be a platform for robust debate, even if that is sometimes uncomfortable or painful.

I agree with Mr Hanna that the impact of reporting is important, and the Herald must take responsibility for any harm done by its reporting.

The reaction to this column has been very strong on both sides. On social media, the debate has been passionate and sometimes vicious. This shows both the difficulty of having such a discussion in mainstream media – but also the importance of doing so.

It is better, I believe, that views such as those expressed here by Stewart can be discussed and debated in the open.

Since publishing the column, the Herald has welcomed a response from Louisa Wall and a piece from ActionStation, providing views from trans people on the issue.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12172412

This month, we have run an-depth news feature on the Births, Deaths, Marriages and Relationships Registration Bill, explaining the issue, the political implications and canvassing people on both sides of the debate.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180576

We have also run an editorial, which addresses the need to have an open debate about the Bill, but also makes the Herald’s own position clear:

“The Herald believes that trans people should be recognised and respected according to the gender by which they live. The proposed law change removes potentially discriminatory processes which make it harder for those without the resources to meet the medical criteria and go through a Family Court process.

In principle, we support the bill.”

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180948

While, of course, Stewart’s column must be judged on its own merits, it has been the catalyst for discussion and reportage which has ultimately helped our audience better understand the issues involved.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My final response to the Media Council:

In their response, the editor denies that Rachel Stewart used misgendering in her article. I believe it is clear that she was not referring to hypothetical cis men pretending to be trans women. Rather she was referring to hypothetical trans women, and using misgendering as a rhetorical device to imply that they are really men.

This is all particularly clear when the context of Stewart’s transphobic statements elsewhere is taken into account, which is why I believe it should not be entirely ignored as the editor suggests.

Though they note no pronoun was used when Stewart discussed [name redacted], the implication of Stewart’s clear incredulity at [name redacted] “competing straight-faced as a female” is that Stewart believes and means to imply that [name redacted] is not a woman. I hope it is clear how closely this rhetoric is to more explicit misgendering through the use of inaccurate pronouns.

The editor admits in their response that misgendering transgender people is counter to the Herald’s reporting policy. I would hope this extends to misgendering a hypothetical transgender person in order to discredit trans women in general, as well as the clearer case of misgendering a specific person.

I understand that part of the role of an editor is to support their writers, but it seems to me that in this case it has resulted in a defensiveness that has led to the Herald failing to enforce the policy that they quoted.

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Can you trust Band-Aids?

Can you trust Band-Aids?

Band-Aid is a household name, but can you trust the way they’re promoted?

For years Johnson & Johnson, the manufacturers of Band-Aid adhesive bandages, have been making a simple claim about them. If you put a Band-Aid on a cut, it will heal faster than it would have if left uncovered.

Specifically, they say it will heal twice as fast:

Band-Aid packaging, front and back.

Johnson & Johnson is a large, well-known medical company. As well as Band-Aids, they make many other health and health adjacent products such as shampoo for babies, cold medicines, and mouthwash. For better or for worse, this means many of us are willing to accept their claims at face value.

In an ideal world, that would be fine. They don’t have a reputation for being misleading, like the reputation Reckitt Benckiser has earned for its misleading claims about Nurofen. They’re also not selling products that are clearly dodgy, like homeopathy or a quantum magnetic health analyser.

If all of us took the time to look into every health claim we encountered, we’d have no time left to eat or sleep. So, in cases like this, we often feel satisfied that if such a big company were making a dodgy claim someone would have caught it and called them out.

Well, that’s exactly what happened in this case. In early 2017, Dr Ken Harvey contacted Johnson & Johnson to ask them to provide the evidence for the “heals cuts twice as fast” claim they were making. In response, Johnson & Johnson did not send him the evidence. Instead, they opted to remove the claims.

“I gently asked them where was the evidence, it’s a fairly strong claim,” Dr Harvey told Fairfax. “And they hummed and hawed and eventually decided, I got a lovely letter from them, saying there was evidence – but they are removing the claims.”

Band-Aid promotions to be ripped off the shelf after complaints about healing claims | The Age

I was alerted to this by a member of the Australian patient advocacy group Friends of Science in Medicine*, which has similar aims to the New Zealand Society for Science Based Healthcare that I chair.

At the Society for Science Based Healthcare, we decided we wanted to make sure that the same change would be reflected over here. So, in April 2017, I wrote to Johnson & Johnson:

Kia ora,

I saw the other day that Johnson & Johnson will be removing promotional material in Australia saying Band-Aids are “clinically proven to heal wounds faster”. http://www.theage.com.au/national/health/bandaid-promotions-to-be-ripped-off-the-shelf-after-complaints-about-healing-claims-20170413-gvk985.html

Similar promotional material for Band-Aids exists in New Zealand. Does Johnson & Johnson also plan to remove these? For example, these online ads for various Band-Aid products all say they can make cuts heal twice as fast as if they were uncovered, and it looks like the same claim is made on the packaging too:

If Johnson & Johnson does not plan to remove these ads, will they be willing to publish the evidence alluded to in the statement provided to Australian media?

Sincerely,

Mark Hanna
Chair, Society for Science Based Healthcare

A couple of weeks later – after their Director of Regulatory Affairs for Australia, New Zealand, and Japan had returned from leave – I received this response:

Dear Mr Hanna,

Re: Band-Aid® Brand Adhesive Bandages

I refer to your correspondence in relation to our Band-Aid® Brand Adhesive Bandages.

I can confirm that the product sold in New Zealand is the same as the product sold in Australia. Any changes that we make to our promotional and packaging material for Australia will, therefore, be reflected in the New Zealand market.

Thank you for your enquiry.

Yours sincerely,

Andrew Harris B.Sc(Hons) PhD
Director, Regulatory Affairs

Great, the claim on the packaging would be removed! A win for consumers, all done and dusted I guess. Except… all those examples I sent to them were text on a supplier’s website. Would their suppliers all be told of the change they should make to the way Band-Aids could be promoted? I asked:

Thanks Andrew, it’s good to have confirmation on this. I assume, then, that Johnson & Johnson will be contacting all of its New Zealand retailers to ensure they update their marketing materials for these products?

Sincerely,

Mark Hanna
Chair, Society for Science Based Healthcare

This time, I never heard back. Obviously I can’t say for sure, but in my opinion it’s likely that Johnson & Johnson never responded to that question because they had nothing else to tell me that wouldn’t make them look bad.

I don’t think they ever had any plans to contact their suppliers about removing this claim from promotional material that Johnson & Johnson didn’t have direct control over. I also don’t think they’ve contacted their suppliers about this in the months since they agreed to change their packaging.

In fact, if you check those example links I sent to them in April, you might find the “Heals cuts twice as fast” claim is still there. At the time of writing, that claim was still present at all three links.

But it’s not just their suppliers that are the problem. In early June, a couple of months after Johnson & Johnson agreed to stop claiming that Band-Aids can heal cuts twice as fast, Society for Science Based Healthcare member Daniel Ryan noticed that the claim was still made on over a dozen pages on the Band-Aid New Zealand website. He laid a complaint about this with the Advertising Standards Authority.

Unsurprisingly, his complaint was settled in July when Johnson & Johnson voluntarily removed the claims:

The Chair [of the Advertising Standards Complaints Board] acknoweldged the Advertiser’s response to the complaint confirming it had made changes to the website voluntarily and without admission, removing packaging images containing statements which were of concern.

ASA Complaint 17/185

Though Johnson & Johnson are clearly happy to be seen doing the right thing – removing claims that they are unwilling or unable to substantiate – it seems to me that they have also been very willing to ignore many places where these claims continue to be made, and to delay their removal through inaction.

It reminds me of Reckitt Benckiser’s behaviour in the case of the misleading claims they made about Nurofen specific pain products. Even though they were eventually forced to remove the claims (accompanied by a paltry fine, in their case), they still made a healthy profit in the meantime.

Perhaps more importantly, during the intervening time in which the claims remained, they were only further cemented as part of public knoweldge. So even though they’re no longer used, they’ll probably still come to mind when people are deciding whether or not to buy them:

“Band-Aids heal cuts twice as fast? Yeah, I’m sure I heard that somewhere.”

This is often what supposedly reputable health companies rely on. Even if they’re forced to remove misleading claims, people will still remember the old claims.

And if no one complains, nothing happens.

* I’m also a member of Friends of Science in Medicine (though not particularly active, since I focus my efforts on New Zealand issues), and Dr Ken Harvey is on their executive.

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.

Press Council Complaint: Homeopathy in the Wairarapa Times-Age

In February this year, an article was published in the Wairarapa Times-Age (both in print and online) headlined Use of natural remedies is on the rise. The article discussed some specific cases of so-called “natural remedies” being used to treat serious diseases, such as intravenous vitamin C for leukaemia and homeopathy to treat various forms of cancer.

Except for a brief mention at the bottom of the article encouraging people with cancer to talk to their doctor before using any “alternative therapies”, there was no mention of the fact that none of the treatments discussed are supported by any reliable evidence. Instead, the article uncritically included various quotes such as this, from homeopath Claire Bleakley:

Featherston-based homeopath Claire Bleakley said she has treated cancer patients using similar natural remedies [to intravenous vitamin C] – significantly extending life expectancy.

She mentioned two of her patients in particular: A man with tumours who lived for seven years after being given two to live, and a woman with ovarian cancer who lived 15 years past her initial prognosis.

“There have been some exceptional results,” Mrs Bleakley said.

“We are indoctrinated to think chemotherapy is the only cure for cancer, but alternative [remedies] have been proven to be more life giving.”

Medical anecdotes such as these unfortunately tend to be very convincing despite the fact that they can also be completely misleading. The reasons why people might get better are varied and complex. Without running a controlled test, there’s no way to know whether or not a particular treatment contributed to an improvement in health. That’s exactly why we need to undertake rigorous clinical trials before we can say with confidence what the effects of any particular treatment are. It’s also why the Medicines Act prohibits the use of health testimonials like this in advertisements, although that restriction of course doesn’t extend to news articles in publications like the Times-Age.

I thought, and still do think, that the lack of balance in this article has the capacity to do serious harm. I wrote to the editor of the Wairarapa Times-Age to make my case, and to give some suggestions for how they might attempt to mitigate the damage this article could do, in a formal complaint:

To whom it may concern,

I am writing to you to make a formal complaint regarding the article “Use of natural remedies is on the rise” published in the Wairarapa Times-Age this morning:
http://www.nzherald.co.nz/wairarapa-times-age/news/article.cfm?c_id=1503414&objectid=11399310

This article uncritically promotes the use of so-called “natural remedies” such as vitamin C or homeopathy for the treatment of cancer. They are promoted by the inclusion of quotes such as “There have been some exceptional results”, regarding the treatment of cancer with homeopathic products.

None of the relevant controversy regarding these treatments is discussed in the article. Although there is a brief note at the end that “those living with cancer [are encouraged] to consult their doctor or specialist before embarking on any alternative therapies”, this does not sufficiently address the important and relevant fact that these treatments are entirely unsupported by scientific evidence, as well as the utter implausibility of treatments like homeopathy.

The failure to discuss the lack of scientific evidence supporting these treatments, as well as the complete lack of plausibility underlying homeopathy, violates the Press Council’s principle of “Fairness, Accuracy and Balance”. The description of this principle on the Press Council’s website states that:

“Publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

Exceptions may apply for long-running issues where every side of an issue or argument cannot reasonably be repeated on every occasion and in reportage of proceedings where balance is to be judged on a number of stories, rather than a single report.”

This is not a long-running issue in which readers can readily be expected to be familiar with the lack of evidence supporting the treatments discussed in the article, so the exception should not apply. There is significant controversy surrounding the issues discussed in this article, but a fair voice has not been given to the opposition view.

Particularly as this article could lead to people living with serious diseases such as cancer to rely on ineffective treatments such as homeopathy, its lack of balance has the potential to cause real and serious harm. Therefore it is important that the Wairarapa Times-Age take appropriate action to prevent this harm by amending the article, publishing a prominent correction, or publishing a followup article linked to from today’s article, that discusses the lack of evidence and plausibility underlying the treatments discussed in today’s article.

If the Wairarapa Times-Age has trouble finding any experts to talk to about this topic, either the Society for Science Based Healthcare (http://sbh.org.nz/contact) or the Science Media Centre (http://www.sciencemediacentre.co.nz/contact-us/) will be able to help.

Sincerely,

Mark Hanna
Society for Science Based Healthcare

Despite sending a follow-up email a few days later, I still hadn’t heard back from the editor over the next 10 working days, which is the deadline set in the Press Council’s complaints process as the time to wait before escalating a complaint to them if you don’t hear back from the editor. After I forwarded my complaint to the Press Council, the editor contacted me to apologise that he’d overlooked my complaint messages, which was apparently due to his having to deal with another complaint about the same article from Peter Griffin, manager of the Science Media Centre (Peter is also the editor and manager of Sciblogs, where my blog is syndicated, and we’d discussed our complaints via email prior to submitting them).

When I forwarded my complaint to the Press Council, I fleshed it out a bit more. I won’t quote the whole thing here as a lot of it would just be repeating myself, although I’d be happy to share my full complaint if anyone would like to see it, but here is one part I added that I think is important and worth sharing:

As far as I’ve been able to tell, the Wairarapa Times-Age has not published a large number of articles regarding this, so it cannot be argued that the counterpoints have already been published in earlier articles.

When it comes to whether or not readers can be expected to be familiar with the important facts not mentioned in this article, I would like to bring the Press Council’s attention to a 2009 study (I am not aware of any more recent data collected on this) published in the New Zealand Medical Journal entitled “Beliefs about homeopathy among patients presenting at GP surgeries”. This study can be accessed for free on Page 94 of this PDF:
http://www.nzma.org.nz/__data/assets/pdf_file/0010/17794/Vol-122-No-1295-22-May-2009.pdf

This study found that only 8 out of 124 respondents disagreed to some extent that “There is good scientific evidence that homeopathy works”, and only 24 respondents reported that they believed homeopathic products were either “very dilute” or that there was “nothing there”. In contrast, 82 respondents agreed to some extent that “There is good scientific evidence that homeopathy works”, and 80 believed that homeopathic products are either “Very concentrated”, “Moderately concentrated”, or “Moderately dilute”.

Contrary to these common beliefs, most homeopathic products are diluted to the point that it is astronomically unlikely that there is even a single molecule of the original ingredient present in the product, and there effectiveness is thoroughly unsupported by scientific evidence. For example, a rigorous review undertaken by the Australian Government’s National Health and Medical Research Council (NHMRC) in 2013 investigated the evidence regarding homeopathy for 68 clinical conditions and concluded that “The available evidence is not compelling and fails to demonstrate that homeopathy is an effective treatment for any of the reported clinical conditions in humans”
(https://www.nhmrc.gov.au/_files_nhmrc/file/your_health/complementary_medicines/nhmrc_homeopathy_overview_report_october_2013_140407.pdf)

For this reason, and especially because the article discussed the use of ineffective therapies in the treatment of terminal illness, it is very important that stories such as this be balanced. As I stated in my original complaint to the editor, I believe the article in its current form has the capacity to do serious harm and that the Wairarapa Times-Age has a responsibility to mitigate this harm. An appropriate response would be amending the article, publishing a prominent correction, or publishing a followup article linked to from the article from the 10th of February that discusses the lack of evidence and plausibility underlying the treatments discussed in today’s article.

(The NHMRC link I provide there is from their 2013 conclusion. Within 2 weeks of submitting this complaint, however, they released their final statement on homeopathy, which states “there are no health conditions for which there is reliable evidence that homeopathy is effective”. This statement was not reported in the Wairarapa Times-Age)

Once the complaint was escalated to the Press Council, the editor of the Times-Age was given an opportunity to respond, then I had a final opportunity to write a short response to that. His primary argument was that the topic of “alternative medicine” was a long-running issue in a wider context, and that the exemption to the principle of balance should apply because other media have reported on the opposing side of the issue.

I strongly disagree with this argument. Although it’s true that media like the Wairarapa Times-Age do not exist in a vacuum, I don’t think this should mean that they don’t have a responsibility to provide balanced articles for their readers. The way I interpret the Press Council code, the exception can be useful when an article is part of a series of articles on the same issue, and when taken in the context of other articles in the series the overall view still maintains an appropriate balance. In the interest of balanced reporting, I believe exceptions to the principle of balance should be applied very sparingly.

Unfortunately, the Press Council disagreed with me. They have ruled not to uphold the complaint, and you can view their entire decision on their website here:
Case Number: 2426 MARK HANNA AGAINST WAIRARAPA TIMES-AGE

Here’s a link to their similar ruling regarding the complaint from the Science Media Centre:
Case Number: 2425 SCIENCE MEDIA CENTRE AGAINST WAIRARAPA TIMES-AGE

Here is a summary of their decision:

The Press Council agrees with the editor that the debate over alternative remedies is sufficiently well known not to require balancing comment in every story about them. The subject falls within the exception to the principle of balance for issues of enduring public discussion.

The complainant in this case raised the important question of whether the exception can be invoked for an article in a newspaper that may not itself have covered both sides of the debate. The Council considered this point closely and came to the view that the exception has not been applied as narowly as the complainant contends and should not be. A newspaper, even if it is the sole newspaper of its locality, does not exist in a vacuum. Its readers, meeting an uncritical story on the supposed popularity of homeopathy and natural remedies, are likely to be aware the efficacy of these treatments is strongly contested by medical science.

I think this is a very worrying precedent to set. Newspapers such as the Wairarapa Times-Age can now feel justified in publishing unbalanced articles on topics such as homeopathy without feeling bound to uphold the Press Council’s principle of balance. The public have a reasonable expectation, given that the Press Council exists to uphold standards in reporting and its first principle is that articles should be accurate, fair, and balanced. While it’s a good idea to take everything you read with a grain of salt, you should be able to feel justified in expecting media reports on controversial topics to provide a balanced view. I worry that people might read articles such as this with that assumption in mind, and falsely conclude that the views omitted from the article are not merited.

I’m also rather frustrated that the Press Council concluded that anyone reading articles such as this is “likely to be aware the efficacy of these treatments is strongly contested by medical science” even though I provided data from a survey that found only 6% of respondents disagreed that “there is good scientific evidence that homeopathy works”. I understand that the survey I cited was conducted 6 years ago, but as I said in my complaint I’m unaware of anything more recent.

Although I don’t think it is, I really hope that the Press Council’s conclusion that most people are aware that homeopathy is not supported by evidence is correct. Following last year’s story about Green MP Steffan Browning backing homeopathy for ebola and March’s story about the Australian National Health and Medical Research Council concluding that homeopathy does not improve people’s health, I think there is some basis to believe that more people are familiar with the lack of evidence surrounding homeopathy than 6 years ago, but I don’t expect there would be that large a difference.

One positive thing to take away from this, at least, is that the journalist who wrote the article said in a Facebook comment that she understood the article was unbalanced and that she should have done better. I hope she’ll take this as a learning experience and, when she or other Wairarapa Times-Age reporters write on matters of “natural health” in the future, that they get in touch with the Science Media Centre to provide that much-needed balance. If we can’t rely on the Press Council to hold journalists to a high standard of balanced reporting, then we’ll have to rely on journalists’ and editors’ own standards.

EDIT 2015/04/14 10:05 am: Peter Griffin, who also complained to the Press Council about this article, has published his thoughts on the ruling as well: When balance goes out the window

EDIT 2015/04/04 1:13 pm: The Wairarapa Times-Age has published a short article on this ruling: Times-Age supported by Press Council

EDIT 2015/04/14 2:21 pm: Grant Jacobs has also published a post with his thoughts on this ruling: Press Council rules on knowing readers minds?

EDIT 2015/04/15 2:51 pm: Andrew Bonallack, the editor of the Wairarapa Times-Age, has published his thoughts on the Press Council decision in an opinion piece for the Times-Age: Your right to choose sacrosanct

100% Natural and Chemical Free

This afternoon, the Advertising Standards Authority released their decision to uphold an interesting complaint regarding advertisements for a couple of cleaning products on a website. Here is the ASA’s description of how the products were described on the website:

The Wendyl’s website (http://wendyls.co.nz/) for “100% natural cleaning and beauty products” advertised their products as having “all their ingredients listed and contain no fillers, chemicals or synthetics.”

The webpage for Wendyl’s Oxygen Bleach 1KG (sodium Percarbonate) stated, in part:

This is powdered hydrogen peroxide which is a greener alternative to chlorine bleach because it breaks down to oxygen and water in the environment.

The webpage for Wendyl-San oxygen soaker 1KG stated, in part:

I’ve spent years testing this oxygen soaker and stain remover and I’m so glad to have something which is so free of chemicals and additives. Secret ingredient is sodium percarbonate, a powdered hydrogen peroxide bleach which breaks down in the environment to oxygen and water…

The complainant, food scientist Claire Suen, said that they breached the Advertising Code of Ethics and the Code for Environmental Claims. This excerpt is, I think, a good summary of their complaint:

The advertiser uses words such as “100% natural”, and “contains no fillers, chemicals, or synthetics”.

However, the product in question is sodium percarbonate, which is not a naturally occurring product. The main active ingredient, hydrogen peroxide, is also not a naturally occurring product and it is not stable in nature.

Both are synthetic chemicals.

After hearing from the advertiser as well, the Advertising Standards Complaints Board sided with the complainant. Here is a summary from the headnote of their decision:

The Complaints Board said it accepted the Advertiser’s view that “sodium percarbonate is a much safer and more environmnetally friendly alternative to chlorine bleach” but not that it was “chemical free” and “100% natural.” The Complaints Board said the advertisement was likely to mislead consumers into thinking the products were “100% natural” and “chemical free” when they actually contained naturally occurring chemicals, in breach of Principle 2 of the Code for Environmental Claims and had not been prepared with a due sense of social responsibility to consumers in breach of Principle 1 of the Code for Environmental Claims.

Accordingly, the Complaints Board ruled to Uphold the complaint.

The most interesting part of this complaint is, I think, who the advertiser is. As well as selling cleaning and beauty products online, Wendyl Nissen writes a weekly column for the New Zealand Herald called “Wendyl Wants To Know“. The Herald describes the column as:

Each week, Wendyl Nissen takes a packaged food item and decodes what the label tells you about its contents.

Have a look for yourself, but from the columns of hers that I’ve read it seems the main argument is typically along the lines of “natural is good, chemicals are bad”. So I find it very ironic that she’s now had a complaint upheld against her for misleadingly claiming that a product she sells is “100% natural” and “chemical free”.

For a counterexample to the attitude of “natural is good, chemicals are bad”, you need look no further than the “recipes” section of her website. There, she has some pet recipes which she makes available for free including one for De-Flea Powder for Cat Biscuits and another for Doggy De-Flea Treats. In both recipes, she claims the active ingredients are yeast and garlic:

The theory behind this powder is that fleas hate the taste of yeast and garlic so will hop off and look elsewhere.

Elsewhere on her website, she recommends that if you:

Put a garlic clove in your pet’s water you can help deter pests such as mites and fleas.

Although it certainly is natural, garlic is also toxic to cats and dogs, especially for cats. I couldn’t find any warnings about this on Wendyl Nissen’s website.

The lessons to be learned? Natural isn’t always good, and don’t take advertisers’ word for it when they claim something is “100% natural” or “chemical free”. As always, ask for evidence.

New Zealand Skeptics Conference: Fighting Pseudoscience

Over the weekend, I attended the New Zealand Skeptics Conference at Auckland University. It was a great weekend, with consistently good speakers. Not only did we have the hosts of the popular Skeptics Guide to the Universe podcast and George Hrab from the Geologic podcast over from America, we also had a lot of fantastic local speakers like Nicola Gaston and Michelle Dickinson (Nanogirl).

If you weren’t able to attend and want to know what you missed, the conference program is currently still available online. I think the website will be reused for next year’s conference in Christchurch though so that won’t last forever.

As well attending some really great talks, I was also able to meet a lot of people who I’d previously only spoken to online. Nicola, Michelle, Jonny, Will, and everyone else I met over the weekend, it was wonderful to meet you all! I was also rather honoured to be given the “Skeptic of the Year” award at the conference dinner, for my consumer advocacy work and for helping to found the Society for Science Based Healthcare.

If you have a close look at the conference program, you might notice that I was scheduled to hold a workshop on “Fighting Pseudoscience” on the Saturday afternoon. As I have done with my previous talk at Auckland Skeptics in the Pub, I’d like to put my slides from this up online. Here they are:

If you view them on Google Drive (click the “Google Slides” link in the lower right) you’ll also be able to see my notes for each slide.

I think the workshop went really well, there was a lot of good discussion with the audience and I hope I was able to motivate some of them enough to make complaints of their own. Unfortunately I was only able to get through a single example in the time I had instead of the four I had prepared, but that was due to the time spent in discussion with the audience so it wasn’t really a problem.

Siouxsie was kind enough to get a few copies of the Ponsonby News (which it’s always fun to hear her rant about on the Completely Unnecessary Skeptical Podcast) to pass around the audience, and a few people found advertisements in the health section that seemed likely to be misleading.

There were also a couple of copies of the Advertising Standards Authority’s Codes Booklet that I was able to pass around the audience (thanks to Lisa Taylor for letting me borrow her code booklet for this). A few people asked me afterwards how they could get one of these booklets. One option would be to email the ASA to ask for one or to tick the box asking if you’d like one when you submit a complaint online. Another option is to print the PDF yourself. The ASA’s codes are all available on their website too, so don’t feel like you have to print the PDF if you’re happy to use an online reference.

Finally, everyone who attended my talk got a copy of a “Complaining Cheat Sheet” that I’d put together for the Society for Science Based Healthcare (thanks to Nancy Lan for helping me a lot with the design). The idea behind this was that it can feel like quite a task to go through the ASA’s codes to find out which sections of which codes an ad might violate, especially if you’re not already familiar with them. This cheat sheet can serve as a quick reference to some of the most commonly violated sections of the ASA’s codes, as well as a guide to how to prepare and submit a complaint.

I’ve embedded the complaining cheat sheet below, and it’s available via the Society for Science Based Healthcare’s website: Complaining Cheat Sheet

Please download it, print it, share it widely, and most importantly use it. It was made to make it easier for anyone to complain about misleading advertising in New Zealand, so the next time you see an ad that you think is misleading, instead of just being annoyed try complaining. Together we can make New Zealand a safer environment for consumers.