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Result of Complaint to Ministry of Health Compliance Panel

Result of Complaint to Ministry of Health Compliance Panel

From the Maternity Services Consumer Council Newsletter June 2010


It is nearly two years since the complaint referred to above was sent to the Ministry of Health’s WHO Compliance Panel for implementing and monitoring the International Code on the Marketing of Breast-milk substitutes in New Zealand.
The complaint concerned the free dinners organised for GPs, Plunket and midwives by the drug company Bayer on 23 and 25 June 2008 and the pre-dinner presentations given by Auckland paediatrician Peter Nobbs on “Feeding options for women not fully breastfeeding” which was followed by a presentation by a Bayer employee promoting a range of specialised infant formulas manufactured by Bayer.

 
Bayer Consumer Care NZ
“Bayer Consumer Care NZ” responded to the letter of complaint in a letter to the Compliance Panel dated 25 August 2008. When advised by email that we were not satisfied with Bayer’s response, the matter was referred to the next meeting of the Compliance Panel which was held on 12 December 2008. The Compliance Panel considered there was a breach of several articles in the NZ Infant Formula Manufacturers Association (NZIFMA) Code of Practice, and Bayer was subsequently notified of this decision. Bayer lodged an appeal in March 2009 and the matter was referred to the Adjudicator.

In a decision dated 7 May 2009 the Adjudicator determined that Bayer had a legitimate ground for an appeal and the complaint was referred back to the Compliance Panel for redetermination.

The Compliance Panel considered the matter again provided its redetermination in a decision dated 11 September 2009, and advised that Bayer was in fact in breach of several articles in the NZIFMA Code of Practice. In a letter dated 9 October 2009 Bayer again appealed the decision of the Compliance Panel. The result was that the Panel’s decision and Bayer’s appeal was once again referred back to the Adjudicator.
The Adjudicator considered Bayer’s appeal and stated in the final paragraph of an 11-page document dated 25 March 2010 that it was her view “that none of the grounds of appeal have been established and the accordingly the Compliance Panel decision should be upheld.”

 
Peter Nobbs
It was a very different story with Peter Nobbs. Peter hired a lawyer to deal with the complaint made about his presentation at the Bayer dinner. Although it was contrary to the Compliance Panel’s normal procedure, the lawyer requested the disclosure of the identity of the person/organisation who had made the complaint.
After getting a phone call from the Ministry of Health Lynda Williams agreed to have her name and that of the organisation she worked for released to the lawyer/Peter Nobbs.

In a letter dated 19 September 2008 the lawyer responded to the complaint on behalf of Peter Nobbs. The Compliance Panel was advised by email that we were not satisfied with the response provided. The lawyer then demanded a copy of the email but this time the request was declined.

The Compliance Panel considered the complaint at its meeting on 12 December 2008. Letters were then exchanged between the lawyer and the Panel. The secretariat of the Compliance Panel requested a copy of Peter Nobbs’ Powerpoint presentation and speaking notes and asked Mr Nobbs to disclose the sum that he was paid by way of an honorarium for his presentations.

The Panel met again on 11 August 2009 and subsequent to that meeting a draft decision letter was sent to the Chair and members of the Panel.

In a decision dated 11 September 2009 the majority of the Panel considered that there had been a breach of the Code.

On 7 October 2009 Peter Nobbs wrote that he had a number of concerns about the Panel’s decision and he appealed. The matter was then referred to the Adjudicator.

The Adjudicator considered Peter Nobb’s appeal and stated in the final paragraphs of an 15-page document dated 8 April 2010 that:

In the context of this decision it is apparent that the Compliance Panel was in possession of all of the relevant information and that it had the opportunity to consider the facts are arguments advanced by the complainant and the health worker. Accordingly it is not appropriate for the matter to be referred back to the Compliance Panel for redetermination.

Accordingly it is my view that the Compliance Panel is quashed.”

Basically Peter Nobbs and his lawyer claimed:
  •  The Health Education presentations were organised by Bayer and covered an entirely legitimate and an important topic for health professionals dealing with breastfeeding and infant feeding issues.

  • The amount of the honorarium ($1125) Peter Nobbs received was not relevant because Peter was not promoting Bayer products.

  • The notes made by Lynda Williams at the presentation contained factual inaccuracies and misunderstandings.

  • Lynda Williams was not invited to the evening for which invitations had been sent out to GPs and nurses.

The truth is that no-one attending these events (Bayer and Peter Nobbs continue to hold them) can be in any doubt that the free dinners provided by Bayer are part of a promotion pushing the range of Bayer’s infant formulas. There are stands and tables with tins of the various special formulas prominently displayed at these events, and the powerpoint presentations by both Peter Nobbs and the drug company rep contain slides with a photo of each of the infant formulas. 

We have it on good authority that the “honorarium” was a great deal more than $1125.

Lynda Williams has 30 years experience of taking notes/minutes while attending meetings and is used to recording verbatim what is said by speakers. She was invited to attend by a midwife who asked the organisers if she could attend and bring a colleague.

 
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