THE "freedom of trade" section of the bill of rights states that "every citizen has the right to choose their trade, occupation or profession freely". Importantly, however, it goes on to limit this right by specifically stating that the practice of a trade, occupation or profession "may be regulated by law".
Constitutional Court jurisprudence has established that any such limitation must be reasonable, rational and justified. This and any other right may be limited legitimately only if it can be demonstrated that exercising it would violate another’s rights, especially if it could cause irreparable harm.
Purveyors of complementary medicines would be well advised to bear this in mind before complaining that their right to trade has been trampled by the Department of Health’s attempt to regulate the sale of products that are not conventional allopathic medicines but for which some health benefit is claimed. These products include homeopathic pills, herbal remedies and aromatherapy oils.
There is every likelihood that some products on the shelves will have to be pulled. It is even possible that some of the companies supplying them will be adversely affected by the consequent loss of revenue. But this is a small price to pay compared to the potential for unsuspecting customers to suffer significant physical or financial harm.
The reality is that many leading retailers in this country stock "alternative medicines" that are in fact unregistered allopathic drugs, let alone numerous complementary health products that are affected by the new regulations the department gazetted at the end of last year.
To take just one of myriad examples: L-lysine, an essential amino acid that forms part of all proteins in the human body, is marketed by a leading South African company as a means of boosting the immune system, treating cold sores, strengthening the vascular system and promoting muscle growth. Yet there is no reference on the container to clinical research that backs these claims, no indication that the product has been evaluated by the Medicines Control Council, and no way for the customer to be sure that what is in the bottle is actually L-lysine rather than sawdust.
This product should not be on the shelves. The department is absolutely correct to be clamping down on such blatant violations of a law that is, after all, accepted practice the world over.
When people’s lives are at stake, the government has a duty to protect the public from snake-oil salesmen. Apart from the risk that whatever is in the bottle may cause direct harm, false claims can result in patients forgoing prescribed medications in favour of an "alternative" that does nothing for them.
There are untested products on the shelves that claim to work as prophylaxis for malaria, for instance, and to control high blood pressure and elevated sugar levels. If they don’t work — and who can say they do without conducting scientifically controlled research? — people could die.
Business Day’s support for Health Minister Aaron Motsoaledi’s bid to clamp down on such abuses should not be seen as an endorsement of the "nanny state". Where people are in a position to make informed choices they should be left alone to do so, even when those choices might be wrong. Genuine complementary medicines — those that are prescribed by homeopaths, for instance, or are traditional herbal remedies — should get a lighter regulatory touch.
They may or may not work. But as long as customers can be reasonably sure of what is in them, and it is made clear that there is no clinical research proving their efficacy in treating whatever they are intended for, people should be free to choose how to spend their hard-earned cash. The government has a duty to protect people from swindlers, but it cannot protect them from themselves.