Australasian Science: Australia's authority on science since 1938

Scientist Survives The SLAPP

By Stephen Luntz

Ken Harvey risked expensive litigation to fight the promoters of SensaSlim weight loss products.

When Dr Ken Harvey lodged a complaint about the so-called complementary medicine SensaSlim he received a SLAPP in return. Not an act of physical violence, although one colleague was threatened, but a Strategic Lawsuit Against Public Participation – in this case a defamation action.

It didn’t matter that what Harvey was saying was manifestly true and in the public interest. The manufacturers of SensaSlim didn’t see why they should stop making millions just because their product didn’t work and might be harmful.

Most SLAPP suits are issued in the hope the activist will surrender or be impeded. SensaSlim’s marketers had an additional motive: the Therapeutic Goods Administration (TGA) cannot complete a product investigation while a case is before the courts. By suing Harvey, SensaSlim bought time to peddle their useless wares.

Colleagues contributed money to Harvey’s legal costs, and the Australian Skeptics organised a fighting fund so “in the end I was not out of pocket,” he says. When a distributor attempted an even more outrageous abuse of process, suing Harvey in a separate jurisdiction after the first case failed, the law firm Morris Blackburn defended him pro bono.

Harvey had pointed to SensaSlim’s claims of “Clinical Proof... SensaSlim is the most effective slimming solution available in the world today”. The touted trial of “11,453 people from over 100 countries” never occurred. The institute that supposedly conducted it has no accreditation and may be nothing more than a website helpfully linking to SensaSlim’s site.

SensaSlim’s claims were repeated in a gushing report on Today Tonight, along with the statement that SensaSlim was TGA-approved.

Harvey notes it was nothing of the sort. The “intra-oral” weight loss product was registered with the TGA, providing a licence to sell it. However, TGA registration is automatic and involves no approval process.

It is all a long way from Harvey’s origins. Growing up in Tongala, the local doctor took an interest in Harvey and encouraged his parents to send him to boarding school since the local school stopped at Year 8. There he was told his science marks were not good enough for a scientific career, but medicine might suit.

Harvey expected to become a GP, but “decided to do something exciting first”. He went to New Guinea as it “was the furthest place the Australian government would pay for me to go”. There Harvey became fascinated by microbiology and antibiotic resistance. “We desperately need new antibiotics,” he notes, “but pharmaceutical companies spend three times as much on promotion as R&D”.

On his return to Australia he worked at the Royal Melbourne Hospital, eventually becoming head of microbiology. He subsequently moved to the School of Public Health at La Trobe University, where he is currently Adjunct Senior Lecturer.

His extensive résumé includes participation in drafting the World Health Organisation’s Ethical Criteria for Medicinal Drug Promotion guidelines. He says: “There are forces at work that can make medicine irrational, and clearly promotion is one of them. I feel a responsibility when I see crazy promotions to put in complaints.”

Eventually the ACCC prosecuted those behind SensaSlim. Serial fraudster Peter Foster is on bail, and the involvement of the notorious Mick Gatto has been exposed.

When Harvey previously investigated Ginkgo biloba products used in Chinese medicine, however, a judge acceded to a request for an interim injunction against him and some colleagues. “The lawyers said we would almost certainly win if it went to court, but it would cost $200,000 so we withdrew and licked our wounds.” Since the estimated cost for the SensaSlim battle was one- fifth of that, Harvey was up for the fight but some of his collaborators gave in.

However, by bringing to light flaws in the current registration process, Harvey helped force four inquiries. At the time of writing the government has not released these reports despite saying they would come out last December.

Harvey hopes for an overhaul of the slow complaints procedures and escalating fines for repeat offenders. He notes that SensaSlim made $6 million, little of which has been recovered. “Cowboys know this and abuse the system,” he says.

Similarly, when Harvey fought the Power Balance wristbands, the distributor was shut down= but a year later another opened.

Meanwhile, there is always another battle to fight, be it getting government-subsidised health insurers to stop covering homeopathy (AS, June 2010, p.39), preventing medical databases hosting brand advertising or seeking redress for TV shows that promote these products. The struggle for evidence-based medicine never ceases.

Harvey won the 2011 Australian Skeptics’ Thornett Award for the Promotion of Reason, including a plaque and $1000. He says: “It takes a tonne of effort to get an ounce of improvement”.