Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-08-032 Lifewave Products

Meeting held 21 January 2010

1.      The complaint concerned a print advertisement published in the Body + Soul section of the 23 August 2009 edition of the Sunday Mail newspaper.

2.      The advertisement was headed “Appetite Patches” and included claims such as “help you put down that chocolate bar”, “gently stimulate[s] acupressure points that control appetite and banish[es] sugar cravings”, “the spleen and stomach are acupressure points that help control the appetite and strengthen the digestive system”, and “clients often find that straight away the food cravings are gone and they’ve lost three to four kilograms in a few weeks”.

3.      The complaint also related to internet material. However, as it was not clear to the Panel that this material was the responsibility of any Australian advertiser or was directed to Australian consumers, the Panel did not consider this aspect of the complaint.

4.      An excerpt of the advertisement can be viewed in the relevant Appendix to this determination.

5.      The advertisement promoted the product Lifewave SP6.

6.      The advertiser was the Sunday Mail.

7.      The complainant requested anonymity.

8.      The complainant alleged that the advertisement breached sections 42DL(1)(g) and 22(5) of the Act, and sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(2)(d) of the Code.

9.      Under subregulation 42ZCAE(1) of the Therapeutic Goods Regulations 1990, the Panel is empowered to seek information in relation to complaints in order to make appropriate determinations.

10.  After making an initial review of the complaint, the Panel made further enquiries as to the circumstances of the publication of the advertisement, and as a result was satisfied that the advertiser, for the purposes of determining the complaint, was the publisher of the Sunday Telegraph newspaper and not the product sponsor.

11.  The advertiser stated that the “article was written as a genuine editorial piece” but that “unfortunately the person writing it was unaware of the requirements of the Therapeutic Goods Advertising Code”. The advertiser stated that the author had “now been fully appraised of the necessity of compliance”.

12.  An advertisement for therapeutic goods is defined in the Act to include “any statement, pictorial representation or design, however made, that is intended, whether directly or indirectly, to promote the use or supply of the goods.” As a preliminary matter, the Panel noted that the material clearly fell within this definition.

13.  Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. The advertised product was included in the Register. This aspect of the complaint was therefore not justified.

14.  Section 22(5) of the Act states that sponsors of therapeutic goods “must not, by any means, advertise the goods for an indication other than those accepted in relation to the inclusion of the goods in the Register”. This provision does not apply to goods of the kind advertised. This aspect of the complaint was therefore not justified.

15.  Section 4(1)(b) of the Code requires that advertisements for therapeutic goods “contain correct and balanced statements only and claims which the sponsor has already verified.” Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”. Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”.

16.  In the absence of any evidence from the advertiser, the Panel was satisfied that the claims related to weight loss, suppression of cravings, and other therapeutic benefits had not been verified, were misleading, and were likely to arouse unwarranted expectations of the product in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code. These aspects of the complaint were therefore justified.

17.  Section 4(2)(d) of the Code prohibits advertisements which “abuse the trust or exploit the lack of knowledge of consumers or contain language which could bring about fear or distress.” The Panel was satisfied that the advertisement exploited the lack of knowledge of consumers. This aspect of the complaint was therefore justified.

18.  The alleged breaches of sections 4(2)(g), 4(6)(b), 4(7), and 5(2) of the Code related to website material rather than to the advertisement. The Panel did not give consideration to these aspects of the complaint.

19.  Section 7(3) of the Code requires that advertisements making weight management claims must have an appropriate balance between those claims and references to healthy energy-controlled diet and physical activity. The Panel found that the advertisement clearly fell within the ambit of section 7(3). The Panel did not consider that the material conveyed the required balance, and therefore found this aspect of the complaint to be justified.

20.  The Panel noted, without making any formal finding, that the advertisement contained a link to a website in which there appeared to be non-compliant advertising.

21.  The Panel requests the Sunday Telegraph, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the advertisement from further publication;

b)      to withdraw any representations that the advertised products have benefits in relation to weight loss or appetite suppression;

c)      not to use the representations in (b) above in any other advertisement unless the Sunday Telegraph satisfies the Panel that the use of the representation would not result in a contravention of the Therapeutic Goods Act 1989, the Therapeutic Goods Regulations 1990 or the Therapeutic Goods Advertising Code;

d)     where the representation has been provided to other parties such as retailers or website publishers, and where there is a reasonable likelihood that the representation has been published or is intended to be published by such parties, to advise those parties that the representation(s) should be withdrawn; and,

e)      within 14 days of being notified of this request, to provide evidence to the Panel of its compliance, including a response in writing that they will comply with the Panel’s sanctions, and where appropriate, supporting material such as copies of instructions to advertising agents or publishers, or correspondence with retailers and other third party advertisers.

22.  The advertiser’s attention is drawn to the provisions of sub-regulations 42ZCAI(3) and (4) which permit the Panel to make recommendations to the Secretary in the event of non-compliance with this request

Dated 7 April 2010

For the Panel

Jason Korke

Chairman

In this determination, unless otherwise specified:

a)      “the Act” means the Therapeutic Goods Act 1989;

b)      “the Regulations” means the Therapeutic Goods Regulations 1990;

c)      “the Code” means the Therapeutic Goods Advertising Code;

d)     “the Register” means the Australian Register of Therapeutic Goods;

e)      “any other advertisement” appearing in sub-regulation 42ZCA1(1)(d) is not confined to advertisements in specified or broadcast media (in relation to which complaints may be made to the Panel under Regulation 42ZCAB).