Australian Competition and Consumer Commission v Homeopathy Plus! Australia Pty Ltd

The Australian Competition and Consumer Commission (ACCC) brought an action against Homeopathy Plus! Australia Pty Ltd in the Federal Court, alleging that the respondent had made misleading and deceptive representations about the effectiveness of the whooping cough vaccine and homeopathic treatments for whooping cough prevention. The ACCC claimed that the representations were false and misleading, and that they contravened sections 18 and 29 of the Australian Consumer Law (ACL). The court was required to determine whether the representations made by the respondent were misleading, deceptive or false, whether they were made in trade or commerce and whether they were carried on for profit. The court also had to decide whether the representations were misleading, deceptive or false when read in the context of an epidemic, and whether the disclaimers erased the misleading, deceptive and false nature of the representations.

The court found that the representations made by the respondent were misleading, deceptive or false, and that they were made in trade or commerce and carried on for profit. The court held that the representations about the effectiveness of the vaccine and homeopathic treatments for whooping cough prevention were false and misleading, and that they contravened sections 18 and 29 of the ACL. The court also found that the disclaimers did not erase the misleading, deceptive and false nature of the representations. The court held that the representations were misleading, deceptive or false when read in the context of an epidemic, and that the representations that the vaccine was "short-lived" were misleading, deceptive or false given the vaccine's propensity to wane over time. The court found that the representations about the effectiveness of homeopathic treatments for whooping cough prevention did not fall to be assessed against a homeopathic epistemological framework or orthodox medical science, and that they implied a reasonable basis in medical science.

The court held that the evidence led by the ACCC as to the nature and seriousness of whooping cough, the nature of the vaccine and recommended schedule for its administration and the essential precepts of Evidence Based Medicine were not contentious. The court held that the expert evidence led by the respondent did not comply with the rules of evidence and was therefore inadmissible. The court held that the representations made by the respondent were not contributions to public debate or educational, and that they had the requisite commercial or trading character.

The court made a declaration that the respondent had engaged in conduct in trade or commerce that was misleading and deceptive, or likely to be so, in contravention of section 18 of the ACL. The court also made a declaration that the respondent had made false or misleading representations in trade or commerce that the vaccine was of a particular standard or quality, and that homeopathic treatments were a safe and effective alternative to the vaccine. The court ordered that the matter be listed for directions to set a timetable for any further evidence on the question of penalties and submissions including on the injunctive and other final orders sought by the ACCC.