Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-10-006 Acne No More

Meeting held 21 January 2010

1.      The complaint concerned a print advertisement published at the website www.totallynatural.com.au.

2.      The advertisement was headed “Attention all parents... If your son or daughter’s ACNE makes them feel down and unattractive here’s some really good news on helping to get clearer skin!”, and included claims related to “acne, pimples, whiteheads, blackheads, blemishes, inflammation, and pimple prone skin”. It also included testimonials and “before and after” photographs.

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

4.      The advertisement promoted the product Acne No More.

5.      The advertiser was Totally Natural Products.

6.      The complainant requested anonymity.

7.      The complainant expressed the following concerns about the advertisement:

a)      That the words “Acne No More” and “scientifically formulated for clear, smooth, beautiful skin” caused it to breach sections 4(2)(a), 4(2)(g), and 4(2)(h) of the Code;

b)      That the brand name “Totally Natural Products” breached sections 4(2)(c) and 4(2)(d) of the Code by conveying that the “product itself is of natural origin”; and,

c)      That the before and after photographs and testimonial breached sections 4(2)(g) and 4(2)(h) of the Code, noting that they related to “Praventin”, which while an ingredient of the advertised product is not the same as the product itself.

8.      In relation to the words “acne no more” and “scientifically formulated for clear, smooth, beautiful skin”, the advertiser claimed that these did not breach the Code and constituted “a simple name aimed at teenagers allowing them to grasp the product use with little effort”. The advertiser stated that the words “scientifically formulated” were supported by “a degree of science” and provided some documentary evidence of this.

9.      In relation to the brand name “Totally Natural Products”, the advertiser noted that the matter had previously been dealt with by the Panel.

10.  In relation to the before and after photos and associated testimonial, the advertiser stated that the advertisement was clear and accurate in stating that they were connected with the use of Praventin, and that Praventin is an ingredient in the advertised product not the advertised product itself.

11.  As a preliminary matter, the Panel noted that the brand name “Totally Natural Products” was a matter that had already been dealt with by the Panel, and decided not to give it further consideration at the present time. The Panel noted that this did not preclude the possibility of giving consideration to the question in the case of a future complaint.

12.  Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”. Section 4(2)(g) of the Code prohibits representations that therapeutic goods are “infallible, unfailing, magical, miraculous”, or that they are “a certain, guaranteed or sure cure”. Section 4(2)(h) of the Code prohibits advertisements for therapeutic goods that “contain any claim, statement or implication that it is effective in all cases of a condition”.

13.  While the Panel did not find the words “scientifically formulated” to breach the Code, the Panel found that the representation conveyed by the words “Acne No More”, used prominently in the advertisement, represented the advertised product to act as a certain cure for acne, and to be invariably effective for acne. The Panel was satisfied that such representations were likely to arouse unrealistic expectations of the product’s effectiveness. These aspects of the complaint were therefore justified, in breach of sections 4(2)(a), 4(2)(g) and 4(2)(h) of the Code.

14.  In relation to the testimonial and before and after photographs relating to Praventin, the Panel found that the advertisement was not misleading in relation to the fact that Praventin is merely an ingredient of the advertised product. The Panel therefore found this aspect of the complaint not to be justified. Without making any formal finding, however, the Panel noted that it appeared possible that the testimonial and before and after photographs could breach section 4(7) of the Code if they were not typical.

15.  The Panel requests Totally Natural Products, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the advertisement from further publication;

b)      to withdraw the representations that the advertised product can cure or offer permanent relief from acne, or that it is invariably effective for acne, including the representation conveyed by the words “Acne No More”;

c)      not to use the representations in (b) above in any other advertisement unless Totally Natural Products 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.

16.  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, including a recommendation that the inclusion of the goods on the Register be cancelled.

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).