Solving New Zealand's Complementary & Alternative Medicine (CAM) Product Crisis: A Risk-Based Proposal)

• Author: Peter J Harris & Ian C Shaw
• Position: LLM (Hons), LLB, BSc (Chemistry); Legal and Research Counsel, Office of the Chief Coroner, Auckland/BSc (Hons), PhD, FRSC, CChem, FRCPath: Professor of Toxicology, University of Canterbury, Christchurch
• Pages: 35-60

35

SOLVING NEW ZEAL AND’S COMPLEMENTARY &

ALTERNATIVE MEDICINE (CAM) PRODUCT CRISIS:

A RISK-BASED PROPOSAL

P J H*  I  C S†

A

Complementary and alternative medicine (CAM) products have existed in

a regulatory vacuum for most of the past 30 years. With the national industry

now worth more than $1.4 billion/year, and in widespread breach of the few

regulations that apply to their products, it is no wonder that every attempt at

new legislation over the past 15 years has ultimately failed. In the face of risks

to public health from unsafe CA M products, false and misleading marketing of

these products, and outdated and inappropriate legislation, new measures are

desperately required . is article considers the history of CAM product reg ulation

in New Zealand, through the mechanisms of the Food Acts 1981 and 2014,

the Medicine Act 1981, and the Dietary Supplement Regulations 1985. It takes

examples of risk-based regulation in the new Food Act 2014 and the Medicines

Act 1981, and studies the nature of this regulatory device and the possibility of its

application to CAM products. is leads on to a consideration of the attempts at

updating the legislation around C AM products, and the problems encountered

along the way. Finally, the article outlines a new proposal for the regulation of

CAM products in New Zeal and – the risk-based Complementary and Altern ative

Medicinal Products Bill.

I. I

ere exists a pervasive Antipodean (if not more widespread), laissez-faire

attitude towards complementary and alternative medicine (CA M) products,

that they are regulated somehow; because that is just the way thing s are:

foods are regulated, medicines are regulated, so CA M products must be

regulated too. However, the truth about the regulation of CAM products

in New Zealand is more limited than the public expect. e New Zea land

regulations, the Dietar y Supplement Regulations (DSRs) 1985 came into

* LLM (Hons), LLB, BSc (Chem istry); Lega l and Resea rch Counsel, O ce of the Chief

Coroner, Auckland.

harris.pete rjohn@gmai l.com. With sincere th anks to my super visors, As sociate Professor

Debra Wilson and Profe ssor Ian Shaw for thei r unyielding a ssistance, p erseverance , and

support in the conduct of t his research.

† BSc (Hons), PhD, FRSC, CChem, F RCPath: Professor of Toxicology, University of

Canterbury, Christchurch.

36 Canterbury Law Re view [Vol 24, 2018]

force in 1987 under the Food Act 1981.1 e Regulations predate even the

term “complementary and alternative medicine”, and given their age and

limited scope, the Regulations are all but redundant. Consequently, CAM

products proli ferate relatively unche cked throughout the Ne w Zealand

market, generating huge prots in a $1.4 billion/year industry,2 and frequently

making il legal t herapeutic claims about ever ything from relieving headaches,

to treating cancer.3

A. Complementary and alternative medicine products

“A clear, objective and neutral … denition of [complementary and

alternative medicine] is the rst requirement for any reasoned debate and

di s c ou r se …”, 4 however, it remains one of the major problems of this area

due to disagreement on the appropriateness of the term “complementary and

alternative medicine”, let alone dening what the term incorporates.

It is important to note that this article is concerned with the regulation of

CAM products, not CAM modalities or practices. Nearly every organisation,

government, or regulatory body has a discrete denition of CAM products,

but they commonly separate CAM products into the two branches;

non-mainstream products used together with conventional medicine

(complementary medicine products), and those same products used in the

place of conventional medicine (alternative medicine products).5 is article

takes a broader and more exible approach.

e World Health Organization’s denition demonstrates the breadth

that comes with most denitions of ‘CAM’:6

e terms “complementary medicine” or “alternative

medicine” refer to a broad set of health care practices

that are not part of that countr y’s own tradition or

conventional medicine and are not fully integrated

into the dominant health-care system. ey are used

interchangeably with traditional medicine in some

countr ies.

1 Dieta ry Supplement Regulations 1985, s 1; Food Act 1981, s 42.

2 Natural Product s New Zeala nd “Report: Natura l Products Industr y a Signica nt Contributor

to NZ’s Economy” (press relea se, 19 February 2015) at 1.

3 Ministry of He alth Regulato ry Impact Statement : e Development of a Natu ral Health Products

Bill (June 2011) at 5–6.

4 Terry SH Kaan “Traditiona l, complementary, and a lternative medici ne” in Yann Joly and

Bartha Ma ria Knoppers (eds) Rou tledge Handbook of Me dical Law and Ethic s (Routledge,

Oxford, 2015) 419 at 419.

5 National Center f or Complementary a nd Integrative Hea lth “Complementary, Alte rnative,

or Integrative Hea lth: What’s In a Name?” (June 2016) .

6 World Healt h Organization WHO Traditional Medicine Strategy: 2014–2023 (WHO, online

ed, Geneva, 2013).