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COMPLAINTS RESOLUTION PANEL DETERMINATION
Complaint 2009-08-039 Biore Skin Preservation Power Couple Moisturiser and SPF 30+ Lotion
Meeting held 21 January 2010
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Complaint summary
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Complainant
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Requested anonymity
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Advertiser
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Kao Brands Australia Pty Ltd
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Publisher
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Pacific Magazines Pty Ltd
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Subject matter of complaint
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Print advertisement
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Type of determination
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Final
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Sections of the Code, Regulations or Act found to have been breached*
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Act section 42C
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Sections of the Code, Regulations or Act found not to have been breached*
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None
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Sanctions
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Withdrawal of advertisement
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* only sections of the Code, Act, or Regulations that were part of the complaint or were raised by the Panel are listed
The advertisement(s)
1. The complaint concerned a print advertisement published in the 31 August 2009 edition of Who magazine.
2. The advertisement was headed “Are YOU in between?”
3. An excerpt of the advertisement can be viewed in the relevant Appendix to this determination.
4. The advertisement promoted the product Biore Skin Preservation Power Couple Moisturiser and SPF 30+ Lotion.
5. The advertiser was Kao Brands Australia Pty Ltd.
6. The publisher of the advertisement was Pacific Magazines Pty Ltd.
7. The complainant requested anonymity.
8. The complainant alleged that the advertisement did not include a required approval number, which the Panel took to be an allegation of a breach of section 42C of the Act.
The advertiser’s response to the complaint
9. The advertiser acknowledged that the advertisement ought to have included an approval number.
The publisher’s response to the complaint
10. The publisher acknowledged that the advertisement ought to have included an approval number.
11. Section 42C of the Act makes it an offence to publish certain advertisements for therapeutic goods in specified media that does not have an approval number, or to publish an advertisement without its approval number, and through reference to the Regulations, applies to “advertisements for designated therapeutic goods published or inserted, or intended to be published or inserted, for valuable consideration, in specified media.”
12. It was clear that the advertisement ought to have been approved and to have included an approval number. The complaint was therefore justified.
13. The Panel requests Kao Brands Australia Pty Ltd and Pacific Magazines Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:
a) to withdraw the advertisement from further publication; and,
b) 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.
14. 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 29 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).
Appendix B: Excerpt of the Advertisement
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