In 1932, May Donoghue made legal history. She didn’t mean to. All she wanted was a nice drink of Ginger Beer on a warm August night. Unfortunately her chosen refreshment at the Wellmeadow Cafe in Paisley, Scotland came with a free decomposed snail.

The snail enhanced beverage was manufactured by David Stevenson of Paisley. Snails were not a normal part of his range of aerated waters. And Mrs Donoghue came over quite ill, requiring immediate medical attention. She sought £500 restitution and the case of Donoghue (a pauper) v Stevenson eventually found itself before the House of Lords.

If Ms Donoghue’s beverage were served in a clear glass bottle, a legal rule called caveat emptor (buyer beware) would have kicked into to save Mr Stevenson. But her bottle was opaque and it was impossible to see the snail before drinking the putrefied contents. The result was the birth of new legal principle derived from the Golden Rule (love thy neighbour as you love yourself – the rule is common to most religions). Their Lordships said ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

Clearly the amount of care that the average punter is owed is dependent on how much he knows versus how much the vendor of the product or service knows (or should know).

As we meander through the local shops, we don’t expect most of the people we encounter on the other side of the cash register to hold any particular expertise in health and medicine. Because of this they are unlikely to owe us a duty of care. If I purchase more aspirin than I need in the supermarket, it’s up to me to read the label and if unsure, seek medical advice. Suing Coles, Woolworths or their employees wouldn’t get me very far.

There is however one shop where we rightly have a different expectation. Pharmacies have increasingly set themselves up as drive-by medicos, where we can get the drugs without having to put on a backless gown and engage the stirrups. We like the convenience of access to professional expertise without having to reach for the medicare card.

Our expectations are higher for pharmacists and rightly so. They are not spotty teens barely qualified to drive a checkout. They are university trained, highly skilled professionals. When they tell us we need to take drug X to cure our cold, we believe them without question. In return for our trust, they owe us a duty of care. They owe us a duty to be fully informed about the latest research on everything they offer. They owe us a duty not to sell us any bum steers. Because it is much easier for them to sell us steers of any kind.

In the olden days, the only thing a pharmacist sold you was the stuff your doctor told him to sell you. The only duty the pharmacist owed was not to get the amount wrong (and act as an informal double check on the doctor). When the franchise was extended to over the counter medicines the duty was to ensure we understood what we were buying and how to use it safely. That’s why you get twenty questions when you try to buy aspirin at the chemist.

Now pharmacies are looking more and more like a supermarket. They sell all manner of allied products. Clearly their duty of care for toilet paper or shampoo is no higher than their supermarket rivals. But what about products which are specifically targeted at our health? Is it different when a pharmacist recommends a product to help us lose weight? Of course it is. That is exactly why weightloss products are sold in pharmacies. They sell much better with the implied (or in some case actual) endorsement of a trained health professional.

These “nutritionally balanced” powdered drinks are intended to replace two meals a day for people wanting to carry a few less spare tyres. The shakes can generally only be purchased from pharmacies and some only after a ‘consultation’ with a ‘weight-loss professional’. But there are very few pharmacies which don’t sell shakes of some description with or without the consultation.

The shakes are usually about half fructose, a low GI sweetener. Those in the know have been quietly distancing themselves from fructose for a while now. In 2002 the American Diabetes Association (ADA) reversed its previous advice to diabetics that they should consume fructose. And just last week, a compelling study surfaced in the Journal of Clinical Investigation.

The UC Davis team persuaded 33 overweight and obese people to try a 10 week diet which was either 25% fructose or 25% glucose. The people on the fructose diet ended up with increased (1.5kg) tummy fat, higher fatty triglycerides (which leads to heart disease) and 20% higher insulin resistance (which leads to Type II Diabetes). None of this happened to the group on glucose.

In other words, Australian pharmacists are leveraging our trust in them to sell a weight-loss ‘solution’ based on feeding overweight people a substance that research shows will make them obese, give them heart disease and encourage diabetes. If that’s not a powdered snail in a packet, I don’t know what is. 

I can hear the class action lawyers warming their briefs already.

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