Update on Ken Harvey law suit

The latest events in Dr Ken Harvey’s legal stoush with the SensaSlim weight-loss company have seen further delays put in the face of the noted campaigner against unproven or disproven medical practices and products.

Harvey’s lawyers have succeeded in having SensaSlim Australia’s initial statement of claim ‘thrown out’, due to technical legal errors. However, SensaSlim’s lawyers have told the presiding Judge in the NSW Supreme Court that they want to re-submit a cleaned-up statement, and they were allowed to do so (given that they have been ordered to pay Harvey’s costs ‘thrown away’ by reason of his having to respond to their amended statement of claim).

This action by SensaSlim keeps the legal suit going and effectively stops the Complaints Resolution Panel (CRP) and Therapeutic Goods Administration (TGA) from acting on numerous queued complaints.

Harvey complained to the TGA over promotion by SensaSlim 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. He expressed serious doubts as to the veracity of the claims and the research itself.

But before the complaint could be properly considered by the CRP, SensaSlim issued a statement of claim against Harvey 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 Harvey’s complaint due to Therapeutic Goods Regulations 1990 42ZCAJ (2), which says that “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.”

Harvey says that he hopes there may be some positive action from the Australian Competition and Consumer Commission (ACCC).

The original complaints were sent to the Commission, as has much other material, he says, including the suggestion that SensaSlim’s ‘SLAPP’ writ is “unconscionable conduct” according to the Competition and Consumer Act 2010.

Strategic lawsuits against public participation – SLAPP – are by definition intended to censor, intimidate and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition.

However, the ACCC will only reveal that it is investigating the matter.

Meanwhile, SensaSlim continues to promote and sell its product.

Australian Skeptics is continuing with a pledge drive to support Harvey financially considering the burden put upon him.

In response, Harvey says that “I’m most appreciative of the Australian Skeptics (and also the Victorian Branch) who have posted an account of the SensaSlim affair on their web sites and have also solicited pledges of support. I am particularly grateful to the many people who have pledged financial support if this is needed. Being the target of unconscionable legal action is a stressful and worrying affair. Your messages of support have meant a great deal to both my wife and me.

“It is my hope that, by highlighting the craziness of the current regulatory system, this case will assist the push for regulatory reform. To that end, people might also consider writing to the Parliamentary Secretary for Health and Ageing responsible for the TGA, Catherine King MP.”

Those interested in contributing to the pledge drive should write to supportken@nullskeptics.com.au, with their name, phone number, and how much they are pledging.

We will keep them informed when and if their pledged amounts will be required.