Snake Oil Goes Digital: Corporate accountability, mis/disinformation and wellness

What happens when wellness becomes a vehicle for mis/disinformation? Netflix’s Apple Cider Vinegar follows the rise of Australian wellness influencers Belle Gibson and Jess Ainscough, who gained fame promoting ‘alternative’ cancer cures like juicing and colonics. The show is based on true events, detailed in the 2017 book The Women who Fooled the World. Both women gained massive social media followings and book deals – but with starkly different outcomes. Belle, who faked her diagnosis, was eventually found guilty of misleading and deceptive conduct in court. Jess, who refused chemotherapy in pursuit of alternative treatments, tragically died at 29. The series provides an unflinching look at the promotion of both misinformation and disinformation in the wellness industry and on social media. As global healthcare access faces legal and sociocultural barriers, mis/disinformation dangerously substitutes for evidence-based care, especially for women.

When we talk about misinformation in this post, we are referring to inaccurate or misleading information that is spread inadvertently. The intention to deceive is not present, rather, misinformation arises because of a misunderstanding, a lack of knowledge or a genuine mistake. Disinformation on the other hand, is false information deliberately spread to deceive. For an excellent infographic explaining this, see here. In an era of influencer based wellness (and even healthcare), the lines between misinformation and disinformation can be blurred.

This blog reflects on these dynamics through a business and human rights (BHR) lens, using our article ‘Enough of the Snake Oil’, (published in the Business and Human Rights Journal in 2021 as part of a Special Issue on gender) as a point of departure. Drawing on critical health and media studies, the article concentrated on what we defined as the ‘sexual and reproductive wellness industry’ – the commodification and promotion of non-medicinal products aimed at addressing women’s sexual and reproductive health – which includes everything from fertility trackers and detox kits to vaginal steaming and hormone-balancing supplements. While many of these products are marketed as holistic alternatives to conventional medicine, they are also embedded in deeply gendered marketing narratives that exploit stigma, insecurity, and unmet healthcare needs.

International human rights law affirms the right to sexual and reproductive health. States are obligated to respect, protect and fulfil sexual and reproductive health rights, with the Committee on Economic Social and Cultural Rights (CESCR) clearly indicating that women’s right to health includes their sexual and reproductive health. In addition, states must ensure that women and girls have access to specific educational information about sexual and reproductive health. This information should be ‘evidence-based, scientifically and medically relevant and up-to-date’. CESCR General Comment 22 further states that States should use the maximum of their available resources with a view to achieve progressively ‘the full realisation of the right to sexual and reproductive health, particularly including…the adoption of legislative and budgetary measures’.

The field of BHR was born out of a recognition of the human rights abuses perpetuated by private entities. It emerged from efforts to hold these entities accountable for individual and collective harms and to prevent and mitigate harms through a framework grounded in human rights. The UN Guiding Principles on Business and Human Rights (UNGPs) set out the framework of the state duty to protect, the corporate responsibility to respect human rights and access to remedy for victims of business-related abuses. Though the state bears the ultimate duty to protect against human rights harms, businesses must avoid perpetuating human rights harm through their activities and provide access to remedy.

As friends and scholars working on corporate accountability for human rights, our conversations have returned often to the kinds of harm that go unnoticed within traditional human rights protections. The BHR field often focuses on large-scale harm perpetuated by multinational corporations (such as oil spills, child labour and modern slavery and contributions to climate change) while overlooking diffuse, insidious and gendered forms of harm. When gender is embedded into academic BHR scholarship, it still tends to reference ‘big picture’ impacts such as mining, debt and board diversity rather than those daily transgressions and seemingly micro-impacts that occur across women’s lives. However, it is in perpetuating these issues, that the outworkings of these small-scale harms become embedded within and integral to economic and social life which in turn contributes to an ongoing cycle of inequality. These limitations have been documented; in 2019 the UN Working Group on Business and Human Rights produced a report recognising the gender dimensions of the UNGPs, noting specifically that business enterprises should not ‘perpetuate gender stereotypes or objectify and sexualise women’s bodies in any process, including sales and marketing, related to their products or services’ (emphasis added).

Motivated by these concerns, our article mapped the rise of contemporary ‘wellness’ culture and its entanglement with neoliberalism, particularly the notion of the self-regulating, entrepreneurial individual. Central to this discussion is the persistent reality that women’s bodies have long been, and remain, contested sites of definition and control – a dynamic we argue is particularly evident in the realm of modern sexual and reproductive healthcare.

Evidence suggests that states are failing in their duties to meet their human rights obligations in relation to women’s health. A 2018 study from the Guttmacher-Lancet Commission demonstrated that each year worldwide, 25 million unsafe abortions take place, and more than 350 million individuals require treatment for curable sexually transmitted infections. In developing regions, an estimated 200 million women face unmet needs for modern contraception annually, while more than 45 million receive inadequate or no antenatal care. Recent controversies involving major pharmaceutical companies and manufacturers have further exposed some of the harmful and unethical practices within conventional medicine. These healthcare challenges are further exacerbated by global disparities in sexual and reproductive health education, and by entrenched patriarchal norms that continue to stigmatise and objectify the female body.

The postfeminist rhetoric of choice and empowerment, along with the popularisation of ‘commodity feminism’, further frames women’s empowerment through participation in the market economy. Recent data from the US suggests women spending more on products related to menopause and pregnancy than on other health products, with millennial and Gen Z consumers are spending more annually on health and wellness than older consumers. The ‘healthtech’ and ‘femtech’ products, characterised by the rise of personal health tracking through smart devices cater to (and to some extent, help to control) every stage of a woman’s reproductive life cycle. Other sexual health products often avoid regulation, and misinformation in marketing has serious human rights implications.

To illustrate the potential for human rights harm in the industry, our article examined three such products (Goop’s Jade Egg, Goddess Detox Vaginal Detox Pearls and LadyCare’s Menopause Magnet) all of which have at some point or other been under investigation for false or deceptive marketing practices across various jurisdictions. We identified key characteristics: a hybrid discourse of scientific and holistic health terminology, reinforcement of stigma around female sexuality and reproduction, and reliance on digital marketing, especially social media, to promote these products.

This final point is increasingly salient. Since publishing our article, the influencer economy has only intensified post-pandemic, blurring the line between personal narrative and commercial endorsement. As Fowler and colleagues observe, ‘quackery is a perennial problem, now amplified by the internet.’ Influencers have become key health communicators yet are largely unaccountable for misinformation or harmful claims. This raises urgent questions about the role of various actors – including influencers themselves and the social media platforms – and where responsibility lies.

In the context of individual content creators, consumer protection law presents a current potential mechanism for regulatory oversight. Some scholars have further proposed establishing a private law-based ‘duty of care’ specific to influencers, aimed at ensuring accountability in their interactions with consumers. Yet, this is also a problem of scale. The sheer volume and diversity of individual influencers operating across digital platforms render comprehensive regulation difficult to implement and enforce effectively. Another potential route for regulation and accountability is via the digital intermediaries themselves. Social media platforms are no strangers to human rights issues regarding their content moderation. Significant (though not always thorough) action was taken by technology companies to try and combat disinformation and misinformation during the Covid19 pandemic, and Meta has recently produced policies for businesses on Facebook and Instagram restricting advertisements that target consumers based on sensitive categories of personal information (including health). Still, a more targeted and state-based approach is needed. The UNGPs can provide a useful starting point to content moderation, reinforcing the state duty to protect human rights (even in online spheres), corporate responsibility to respect via tools such as impact assessment for product and policy development, and meaningful rightsholder consultation, and effective access to remedy for harm.

A BHR approach has the potential to reframe these issues not as isolated cases of bad practice, but as part of a broader human rights accountability gap in women’s health and the spread of mis/disinformation. Nevertheless, many of the problems tied to the commodification of women’s sexual and reproductive health are deeply embedded in patriarchal structures – structures that human rights law itself is enmeshed in. While human rights frameworks offer important tools for addressing corporate harm, they have historically struggled to recognise and respond to the diffuse, gendered nature of harm experienced in the everyday spaces of health, care, and the body. Unchecked, the commodification of women’s health through mis/disinformation will continue to deepen structural harm under the guise of wellness.

Dr Marisa McVey is a lecturer at Queen’s University Belfast. Her research critically examines current and potential mechanisms of corporate accountability for human and environmental rights, and imagines alternatives for a just transition to a sustainable and equitable society. She is currently working on projects related to human rights due diligence (HRDD) practices.

Dr Clare Patton is a lecturer at the School of Law, University of Leeds. Her research applies business and human rights frameworks to female and child health and wellbeing. She explores how these frameworks can improve health outcomes for vulnerable populations. Clare also collaborates with WHO, UNICEF, and various health and nutrition advocacy groups. She recently completed a HEA-funded project that developed an infant and young child feeding in emergencies preparedness plan for Ireland.

Dr. Ciara Hackett is a Reader in the School of Law at Queen’s University Belfast. Her research cuts across Corporate Social Responsibility (CSR) and Business and Human Rights (BHR). Her interest lies in how remedy is understood by the legal mechanisms that buttress BHR but also by victims of corporate human rights impacts who seek a remedy. She is currently working on a project which theorises how the conciliatory corporate language used in legal policy and guidelines within BHR risks downgrading how corporate actors understand their responsibilities to human rights.