Ken Harvey taken to court

Dr Ken Harvey, adjunct senior lecturer in the School of Public Health, La Trobe University, and a regular campaigner against nonscientific products and services, has been put under great personal and financial pressure by a ‘SLAPP’ suit (a strategic lawsuit against public participation) over a complaint he has made concerning a slimming product.

Dr Harvey complained to the Therapeutic Goods Administration (TGA) over promotion by SensaSlim Australia Pty. Ltd. for its weight-loss product that uses a spray to supposedly ‘desensitise’ taste buds and reduce hunger pains. The promotion claims that a research study of over 11,000 people had substantiated the company’s claims for the product.

In his statement to the TGA Complaints Resolution Panel (CRP), Harvey provided a number of reasons why, “in my opinion, the ‘sensational results’ claimed are most likely to have been fabricated. In addition, I do not believe that any of the other claims made for this product are capable of substantiation.”

But before the complaint could be properly considered by the CRP, SensaSlim issued “Statement of claim” against Harvey in the NSW Supreme Court alleging that his complaint was defamatory and claiming “general and punitive damages for libel in the sum of $800,000.00”, plus costs.

This action had the effect of stopping the CRP from hearing Dr Harvey’s complaint due to Therapeutic Goods Regulations 1990 42ZCAJ (2), “If, after a complaint has been made to the Panel, a proceeding begins in a court about the subject matter of the complaint, the Panel cannot deal with the complaint until the proceeding is finally disposed of”.

SensaSlim heavily promotes a white paper on the research produced by Dr Matthew Capehorn, clinical director of the National Obesity Forum (UK) and clinical manager of the Rotherham Institute for Obesity. In a video on the company’s website, Capehorn thoroughly endorses the product and the research study that was the basis for the claims made.

However, through his lawyers, Dr Capehorn has now written to SensaSlim, claiming it has made “totally untrue statements and allegations” about him. His lawyers add that “SensaSlim induced Dr Capehorn to become involved with its product on the specific representation that extensive clinical trials had been undertaken on the SensaSlim products that conclusively proved the effectiveness claimed for those products. At no time, notwithstanding repeated requests made by Dr Capehorn, have those clinical tests even been made available to him – if, indeed, they exist, or did take place and/or gave the results contended for them by SensaSlim.”

This implies that Capehorn was citing a product trial that he had never seen.

In fact, he substantiates this view as recently as May 28, 2011 in an email sent to SensaSlim franchisees in which he says: “I have previously stated that the White Paper I produced for them was a review of the product, done in good faith, based on information that was provided to me. Despite requests, I have never seen evidence of the original clinical trial, and it has never been published in a peer reviewed medical journal. Therefore, the White Paper holds no scientific relevance, until that original trial is published.”

He adds that “with effect from 21 May 2011, I am no longer contracted as the Research Director for SensaSlim. This has been as a result of numerous breaches in their contract with me. I gave notice of their default on 21 April 2011, and informed them that they would no longer have my permission to use my image or written materials (the White Paper).” However, as of May 31, Dr Capehorn’s image, video testimonial and white paper are still on SensaSlim’s website.

He adds: “The SensaSlim product that you have invested in may well be an effective weight loss product, but in my time as Research Director for SensaSlim, I never saw any evidence to substantiate the weight loss claims made in their clinical trial.”

Dr Harvey’s lawyers have filed a notice of motion in the NSW Supreme Court seeking orders to have the SensaSlim claim struck out and the proceedings dismissed because they disclose no reasonable cause for the action. In addition, his lawyers have asked for an order that the plaintiff pay the defendants’ costs. These matters are now before the Court.

However, Dr Harvey is subject to considerable financial expenditure, in order to defend himself and his complaint. The complaint itself has been supported by others, some of whom have issued their own complaints on the product.

He informed us on May 31 that “[SensaSlim] have now applied (at the last minute) to delay court proceedings. I have instructed my lawyers to proceed on regardless.”

Dr Harvey is a particularly busy activist against dubious claims by suppliers of self-proclaimed ‘therapeutic’ goods, in particular those associated with weight loss. Over the last few years, all of his complaints to the Therapeutic Goods Administration and assessed by the Complaints Resolution Panel have been listed as justified. He is also a self-confessed “stubborn bastard”.

In support of his action, Australian Skeptics has instituted a program for individuals to pledge financial support for Dr Harvey should it be required. Anyone interested in pledging support should write to supportken@nullskeptics.com.au, with their name, phone number, and how much they are pledging.

Australian Skeptics has undertaken this pledge drive because we are concerned at the burden put upon one who has continually called to account those who promote and sell unproven and disproven products that have no basis in science. The suggestion that Dr Harvey could be stymied by such promoters and sellers’ resorting to legal action, and thus protect them (if even for a short time) from due process, must be countered at every opportunity.

Meanwhile, the issues raised have been ventilated by the ABC Health Report; the Croaky Health blog and Channel Nine A Current Affair. The saga continues.