COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-08-034 Ultimate Therapies Beam Ray Light and Sound Frequency Generator

Meeting held 21 January 2010

1.      The complaint concerned an internet advertisement published at the website www.ultimatewellness.com.au.

2.      The advertisement extended over several pages and included claims related to “cancer support”, “preventing the development of cancer”, “regressing existing cancers”, “inhibiting further [cancer] growth”, “the formation of abundant toxins”, “a cure for cancer and many other diseases simply by using vibrational energy”, “every virus, bacterium, parasite and other pathogen is particularly sensitive to a specific ‘frequency’ of sound and can be destroyed by intensifying that frequency until it literally explodes”, “cancer including cancer affecting skin and internal organs”, “skin conditions including acne, burns, eczema, ulcers”, “respiratory conditions including asthma, recurring viral infections”, “digestive conditions including Crohn’s disease, Celiac, candida, parasites”, “viral illnesses including herpes, chronic fatigue, HIV/AIDS”, “organ dysfunction including diabetes, tinnitus, thyroid problems”, “osteopathic conditions including fibromyalgia, osteoporosis”, “behavioural and neurological conditions including ADD, ADHD, MS, insomnia, migraines, hormonal imbalance, anxiety”, “auto-immune conditions including HIV/AIDS, chronic fatigue syndrome, chronic inflammation, tumours, cancers, arthritis”. It included words such as “this instrument is based on Royal Raymond Rife’s quest to study the unique electromagnetic ‘signature’ of Viruses, Bacteria, Parasites, Fungi and Cancer, and experimenting with special frequencies to DESTROY them”, “we are only able to sell this state of the art instrument for your own investigation into the effects of bioactive frequencies on over 550 different conditions, results may vary, we cannot make claims. These conditions range from: Abscesses, Aids, Anthrax, Arthritis, Athlete's Foot, Candida, Carcinoma, Epstein-Barr, Giardia, Hepatitis, Herpes, Infection (many), Irritable Bowel, Leukemia, Lupus Eryth., Multiple Sclerosis, Smallpox, Parkinson's, Pneumonia, Thrush (yeast), Shingles, Sarcomas, Tuberculosis, Plus a whole host of other diseases that come from Infectious Agents. (There are other more esoteric claims associated with this instrument by "new-age" healers that may cause one to raise an eyebrow at, and that's what causes a controversy surrounding this truly wonderful instruments claim to fame)”.

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

4.      The advertisement promoted the Beam Ray Light and Sound Frequency Generator.

5.      The advertiser was Ultimate Wellness Therapies.

6.      The complainant requested anonymity.

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

8.      The advertiser stated that “it was not the intention of this company to mislead or make unreasonable claims on medical treatments” and that rather, “its intention was to bring only nutritional support to individuals affected by chronic ailments without affecting or disturbing the medical management of their condition”. They stated that “the Beam Ray machine has been used strictly in accordance with the manufacturer’s recommendations and sounded at the time a promising tool”, but that “not [being] convinced by the manufacturer’s claims the machine has had minimal use”.

9.      The advertiser also stated that the business was no longer in operation and that the advertising would be removed “as no longer useful”.

10.  As a preliminary matter, the Panel noted that the inclusion of words such as “we are only able to sell this state of the art instrument for your own investigation... results may vary, we cannot make claims” did not alter the fact that the advertisement clearly did make numerous very strong claims regarding the effectiveness of the advertised product.

11.  Therapeutic goods are defined in the Act to include goods that are represented in any way to be for therapeutic use. Therapeutic use is defined to include use in or in connection with influencing, inhibiting, or modifying a physiological process in persons. The advertisement clearly constituted an advertisement for therapeutic goods.

12.  Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. The Panel noted that the product is not included in the Register, and that therefore any of the material in the advertisement that presented the product as being for therapeutic use (as defined in the Act) would be sufficient to render the material in breach of section 42DL(1)(g). The Panel considered that the advertisement contained numerous therapeutic claims which ought not to have been made, and therefore constituted a breach of section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

13.  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”.

14.  In the absence of any evidence from the advertiser, the Panel considered that the advertisement was in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code, and found this aspect of the complaint to be justified.

15.  Section 4(2)(b) of the Code prohibits advertisements that are “likely to lead to consumers self-diagnosing or inappropriately treating potentially serious diseases”. In the view of the Panel, the advertisement was very likely to lead consumers into self-diagnosing or inappropriately treating potentially serious diseases. This aspect of the complaint was therefore justified.

16.  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.” Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”. The Panel was satisfied that the scientific information presented in the advertisement was not accurate and was misleading, and was likely to abuse the trust or exploit the lack of knowledge of consumers. These aspects of the complaint were therefore justified.

17.  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”. The Panel was satisfied that the advertisement represented that the product advertised would invariably be effective, or that it constituted a sure cure. The Panel therefore found that this aspect of the complaint was justified.

18.  The Panel noted, without making any formal finding, that the advertisement appeared likely to breach section 4(2)(i) of the Code by reference to ‘safe’ and section 5(1) ( prohibited representation) by reference to cancer.

19.  The Panel requests Ultimate Wellness Therapies, 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 product has benefits in relation to cancer, toxins,  viruses, bacteria, parasites, pathogens, skin conditions, acne, burns, eczema, ulcers, respiratory conditions, asthma, recurring viral infections, digestive conditions, Crohn’s disease, celiac disease, candida, herpes, chronic fatigue syndrome, HIV/AIDS, organ dysfunction, diabetes, tinnitus, thyroid problems, osteopathic conditions, fibromyalgia, osteoporosis, behavioural and neurological conditions, ADD, ADHD, MS, insomnia, migraines, hormonal imbalance, anxiety, auto-immune conditions, chronic inflammation, tumours, arthritis, fungal infections, abscesses, anthrax, athlete's foot, carcinoma, Epstein-Barr disease, giardia, hepatitis, irritable bowel syndrome, leukemia, lupus, smallpox, Parkinson's disease, pneumonia, thrush, shingles, sarcomas, or tuberculosis, together with any other representations that the advertised product is for therapeutic use;

c)      not to use the representations in (b) above in any other advertisement unless Ultimate Wellness Therapies 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;

e)      to arrange for publication on the website www.ultimatewellness.com.au of a retraction in the form of, and in accordance with, the conditions set out in the attachment to this determination; and,

f)       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.

20.  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).

An advertisement to appear on the website www.ultimatewellness.com.au at the earliest booking opportunity.

A copy of the retraction advertisement, and the page on which it will be published, is to be provided to the Complaints Resolution Panel for approval before publication.

No other copy should be included in the advertisement.