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Think of this blog as a sort of nursery for my half-baked ideas hence 'stuff that occurs to me'.

Contact: @JoBrodie Email: jo DOT brodie AT gmail DOT com

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Sunday, 22 April 2018

Misleading website health claims - anyone can send a cease and desist letter


    Photo credit: aitoff on Pixabay (CC0-licence)

I have discovered something which I think I really should have known about, and which has astounded me.

Anyone can send a Cease and Desist letter to a trader who is making misleading claims. For me this would largely relate to misleading health claims, as that's my area of interest, but it would apply to anyone. This would seem to be of particular interest to scientists, doctors, skeptic activist / bloggers and so on.

My recommendation is to proceed very cautiously and politely though :)

The letter itself has no legal weight on its own, the trader doesn't have to respond. However it may be in their interests to do so.

If you subsequently report them to Trading Standards your ignored letter (keep a copy) is potential evidence against them, for persisting in being misleading after you had pointed out the problem.

My surprise discovery happened while reading this paper "Testing the Effectiveness of Consumer Legislation for Health-Related Claims" from HealthWatch. The paper follows the path of a series of complaints made to the UK's (National) Trading Standards about websites' health claims for which there's no (or unlikely to be) robust evidence. HealthWatch's web page accompanying the paper puts things into context:
  • Pursuing a complaint is cumbersome and lengthy
  • Most complaints do not result in enforcement
  • Approaches to enforcement vary widely between trading standards offices
The paper reports on the actions of several volunteers who followed a protocol for asking traders for evidence and, if none forthcoming (or not of suitable, robust quality) a cease and desist letter was sent before the complaint was escalated to Trading Standards.
"Volunteers asked traders to provide evidence for their claims. None did, but three removed their claims from their websites. Volunteers then sent the remaining traders a 'cease and desist' letter, warning them that failing to comply would trigger a complaint to the authorities. One further trader removed claims at this stage." [from page 3 of the 54 page PDF].   The template for the Cease and Desist letter is on page 50.
    Regrettably Trading Standards was only able to investigate a handful of cases (they are understretched) which highlights the importance of bloggers writing about misleading claims in an attempt to stem the flow of nonsense on the web by providing better information.

    Even before you get to that point it's not always obvious who you should be complaining to about a misleading health claim. In its March 2018 report, the Westminster Commission on Autism found that it was difficult and confusing for people to report misleading and harmful 'cures' for autism§ to the relevant authorities.

    Their report recommended that the relevant regulatory bodies (Advertising Standards Authority (ASA), Trading Standards, Food Standards Agency, Medicines & Healthcare products Regulatory Authority (MHRA)) etc could help by determining who has responsibility for what - this is not always clear in the case of food products (Food Stds Agency remit) which are sold with medical claims (MHRA or Trading Stds remit).
    "It is currently far too difficult to determine which agency is responsible for the regulation of the manufacture, promotion, distribution, sale and use of harmful physical, medicinal, psychological or social interventions for autism. Establishing the remit of each agency listed on page 3, identifying potential gaps between them and suggesting possible ways to close the gaps is highly complex. The Commission recommends that the Government urgently convenes the agencies listed alongside others to thoroughly consider the current gaps and look for solutions.

    The agencies must produce a publicly available flowchart of their remit and establish a single reporting mechanism for any concern. The Government should reassess the appropriate remit of each organisation and assess the benefits and drawbacks of legislation similar to the Cancer Act 1939." [page 5 of the Westminster Commission on Autism's report, 'A Spectrum of Harmful Interventions for Autism: a short report']
    Previously I have blogged about how I would like to be able to have a quiet word with people selling quackery instead of reporting them to the Advertising Standards Authority or Trading Standards, in the hope that they make amendments without 'getting into trouble' and saving everyone time.

    Giving people the opportunity to remove their misleading claims without reporting them to any authority seems a friendly way to proceed. However, from experience such attempts have not been well received (or are just ignored). It's a bit fraught - I don't think there's any way of broaching the subject with a trader that doesn't come across a bit threateningly (how could it not, given that the subtext must always be 'if you don't amend this, I will report your site to the regulatory body').

    For that reason my preference is probably just to continue reporting misleading claims directly, however if you want to give traders the opportunity to amend claims without involving authorities (until you have to, because they've ignored you) then here's a recommended sequence of events to follow, or 'flowchart'. This assumes you're fairly confident in assessing health evidence.

    1. Ask for (robust) evidence (this would not include testimonials) and give them a reasonable time to respond ('please reply by X').
    2. If no response, or if evidence is poor, send a polite cease and desist letter - keep copies.
    3. If nothing happens you can report them to Trading Standards and the letter may be used as evidence.

    Note that the authors and volunteers involved in the HealthWatch paper were acting following legal advice - I am not a lawyer and while a cease and desist letter is unlikely to be a legal document on its own I recommend conducting this sort of business super-professionally. Remember you are probably dealing with someone who genuinely believes in their 'treatment' and may be terrified by receiving what looks like an official document. While they are misleading people, and may potentially cause harm, don't be unkind in your dealing with them.

    With thanks to @Majikthyse for additional help :)

    §Further reading
    A number of skeptics' complaints to the Society of Homeopaths over concerns that their members were touting CEASE therapy for children with autism apparently fell on deaf ears (the SoH were very polite when I contacted them, however no changes to the problematic websites were made). These complaints were then escalated to the Professional Standards Authority (PSA) which accredits the SoH's register of homeopaths, and the PSA has taken action. They have re-accredited the SoH (review panel decision) but with a number of provisos, effectively putting the Society of Homeopaths into 'special measures' - maintenance of their accreditation is dependent on fulfilling certain criteria. This is encouraging as it  shows that skeptic complaints can be very effective in getting regulatory bodies to act.




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    Comment policy: I enthusiastically welcome corrections and I entertain polite disagreement ;) Because of the nature of this blog it attracts a LOT - 5 a day at the moment - of spam comments (I write about spam practices,misleading marketing and unevidenced quackery) and so I'm more likely to post a pasted version of your comment, removing any hyperlinks.

    Comments written in ALL CAPS LOCK will be deleted and I won't publish any pro-homeopathy comments, that ship has sailed I'm afraid (it's nonsense).