Opinionista Ivo Vegter 8 September 2014

Free the hippies! Don’t ban their drugs!

No, this is not my long-awaited libertarian legalise-it column. This is about alternative medicine. At the last count, 14,500 people had put their names to a petition to demand that “natural health products” not be regulated by the Medicines Control Council. They have a very good point, but that point raises thorny issues.

Ivo Vegter

Ivo Vegter is a columnist and the author of Extreme Environment, a book on environmental exaggeration and how it harms emerging economies. He writes on this and many other matters, from the perspective of individual liberty and free markets.

“South Africans deserve freedom of choice about the medicine they prefer to take. The new regulations put out by the MCC will mean that 85% of all natural medicines will disappear from the marketplace, thousands of people will be out of work and the economy will lose millions. We will have the most stringent and highly regulated natural health industry in the world.

“This move by the MCC is unconstitutional and denies the South African people the right to freedom of choice and access to natural medicines.”

Thus runs the text of a petition appealing to the South African Minister of Health to “stop the crackdown on natural health products”.

There has been a steady trickle of media attention to the final draft of amendments to the Medicines and Related Substances Act, which were published late last year. They were the subject of more than ten years of consultation and behind-the-scenes work. The draft proposes to control so-called complementary medicines under a regime similar to how proven medicines are governed.

Complementary medicine is defined as any product sold for use in “assisting the innate healing power of a human or animal” for therapeutic purposes. It covers all disciplines regulated by the Allied Health Professions Council, which excludes traditional African medicine, but includes homeopathy, herbal medicine, naturopathy, therapeutic aromatherapy, traditional Chinese medicine and Hindu (Ayurvedic) traditional medicine.

For an excellent and detailed overview of the regulations, you can’t beat this overview, published last year for the journalism project GroundUp by Kevin Charleston, a writer who bravely gets in the line of fire of alternative health industry lawyers.

Let’s just get the formalities out of the way. Petitions are an idiotic idea. While Avaaz does have publicity power, it is the modern version of a mob yelling at the city hall. For every person who is moved to grab a pitchfork, there are ten sitting at home resenting the noise. They’re populist nonsense, and you can’t even prove the signatures are real. For every time the mob does move someone in power, it moves ten to defensive spitefulness. And even then, there’s no saying the mob’s demand was just.

Also, my position on alternative medicines has not changed since May, when I deplored the fact that our universities are endorsing quackery. Here’s another case, offering a subject called Unani-Tibb, which includes such medieval superstition as cupping. Next they’ll be teaching degree courses in the care and feeding of leeches. I remain of one mind with Tim Minchin: alternative medicine that works is called medicine.

Under South African law, ordinary medicine is classified on a schedule, depending on its potential for harm and the seriousness of the diseases it is meant to treat. All medicines must be registered, upon which a statutory body known as the Medicines Control Council (MCC) evaluates them.

The MCC has three basic criteria for licensing a drug: quality, safety and efficacy. The first assures you that the medicine contains what it says it contains, and is not contaminated with unnecessary toxins. The second assures you it is not likely to kill you while it cures you of the sniffles. And the third says that in some statistically significant number of cases it will work better than a sugar pill and a glass of water.

The amendments aim to apply similar criteria to complementary medicines. Of course, they can’t be translated directly, because magic. For example, many homeopathic preparations are designed not to contain what it says on the bottle. The pure water in the bottle merely remembers what it used to contain. Herbal products might be efficacious, but they are also often meant to be impure, because all the other stuff supposedly helps the active stuff work. Many preparations cannot be shown to be efficacious at all, which is why they are complementary medicines, rather than medicines. So the new law will be less strict than with conventional medicine, and will devote more scrutiny to concoctions that claim to treat heart failure or brain cancer than to preparations for teenage pimples or perplexed auras.

All of that seems fair. It provides the same consumer protection in the alternative medicine industry (not to mention the astonishingly profitable training supplements and vitamins industry) that the law already provides in the conventional health sector.

It subjects everyone to the same high barriers to entry, so competition happens on a level playing field. And it keeps out the quacks who make absurd claims merely to part fools from their money.

Here is the thing. I entirely agree with the hippies’ petition. Fraud is fraud, and delict is delict. If you make patently dishonest claims on packaging, or you sell something that is contaminated with poison, the perpetrators should face appropriate civil and criminal consequences. But the law already provides for that.

I do not think that herbal remedies, homeopathy, and assorted other humbug ought to be regulated by government. As journalist Jeanne Viall wrote in her piece for the Cape Times, “Yes, I want safe products, but I have the right to choose the health system that works for me.”

She does. If she turns out to lack the competence to make that choice, well, she’ll find out the hard way. I see no reason why my medicine should be more expensive, or new drugs should be delayed by bureaucracy, just to protect Ms Viall from her own mistakes. And she is unlikely to be convinced by a bunch of new regulations.

Another concern is that the imprimatur of registration with the MCC will have a legitimising effect on alternative medicines, without having subjected them to any sort of clinical trials. So we run into the same problem that we saw with universities giving implicit credence to quackery by offering formal courses in it: it places unscientific or inadequately researched therapies on an equal footing with scientific medicine.

Used to be you’d go to the doctor only if really necessary. You knew that there were risks associated with medicine. Suspicion of doctors arguably protected people in many cases. Once governments vouched for the safety, quality and efficacy of medication, the consumer became less critical. Surely this bottle of pills, stamped by the government and supplied by a doctor with a government licence on his desk, is okay?

Is it any wonder that people turn up at their doctor’s place demanding prescriptions? Is it any surprise that some bacteria are becoming resistant to antibiotics? Is it strange to find the media full of stories of an over-medicated society?

So keep the deadly nightshade, the sugar pills and the diluted water off the scheduled medicine register, please. It’s bad enough that decent morphine is so hard to get these days. (Hey, morphine is made from the milk of the poppy. It’s no less natural than the powdered extract of coca leaves.)

With me so far? Good, because the view that the hippies are right to demand freedom from government oversight has consequences. If they are right, which they are, then the same is true for ordinary medicines. After all, by the principle of equality before the law, all products sold for therapeutic purposes – be they African, Chinese, Indian, Western, or magical – ought to be subject to the same standards of oversight.

A serious side-effect of quality standards is that they create a protected cartel of suppliers. Only those who are able to pay the cost of meeting the standards are able to compete in the sector, and that gives large incumbent corporations the advantage.

There are good reasons why retail pharmacy in South Africa is dominated by three major chains, and why a personal relationship with your pharmacist seems quaint. There are reasons why pharmacies sell sports nutrition and diet aids and homeopathy and Power Scam bracelets. And almost all those reasons are regulatory.

Pharmaceutical manufacturers are protected by the astronomical costs of developing drugs and getting them approved. Pharmacies are protected with price controls that put smaller rivals out of business. Both are protected by the regulatory barriers to entry into their respective businesses.

This state of affairs is considered normal by almost everyone, in the name of consumer protection. It is even considered normal by the people who demand personal choice in alternative medicines. But the alternative medicine industry is right to fear the same treatment. They are right to warn about the grave economic implications.

The question is whether those implications are worth it, given that the regulations are supposed to protect people from quacks who sell water, snake-oil or contaminated botulism injections. Is the government not shielding the public from danger by doing something that nobody without years of post-graduate training could do for themselves?

As it turns out, the Medicines Control Council is not some rare exception to the rule that bureaucracies are by definition incompetent, inefficient and disorganised. On the contrary. It hardly has the capacity to regulate conventional medicine. The last thing it needs is to be loaded with a vast new industry sector flooded with crackpots, quacks and swindlers.

Why would anyone trust such an agency to decide what is or isn’t safe? Why trust it more than any other potential agency that could certify quality, safety and efficacy in medicine? Candidates for such a task would be major hospitals, private physician’s associations, or any number of competing consumer protection groups.

So, if alternative healthcare consumers want to protest against their industry becoming a government-licensed and regulated cartel, they have my full support. What kind of healthcare they believe in is nobody’s business but their own. That they don’t trust the government to make the right decisions for them is natural. I wouldn’t trust the MCC either.

But that raises the question: why not demand the same for conventional medicine? Why should the rest of us be subject to a profiteering cartel protected by an incompetent bureaucracy? Why do the rest of us not have the right to choose? Why would we not be entitled to the free market in medicine that the hippies demand for themselves? DM



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