Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-09-022 Snore Wizard

Meeting held 5 November 2009 (revised)

1.      The complaint concerned a print advertisement published in the 27 September 2009 edition of the Sun Herald newspaper.

2.      The advertisement was headed “Stop your snoring now and forever” and included claims such as “it is simple to stop snoring instantly... and that is fully guaranteed”, “works like magic”, “I haven’t snored since using it”, and “I snored so badly even the neighbours complained! Now after your product: no more”. The advertisement also included the words, “Health Advice: If you suffer from severe asthma, epilepsy, sleep apnoea or any other serious breathing difficulties please consult your Doctor before using Snore Wizard.”

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

4.      The advertisement promoted the Snore Wizard device.

5.      The advertiser was Quarry House International Pty Ltd.

6.      The complainant was anonymous.

7.      The complainant alleged that the advertisement breached sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(g), 4(2)(i), 4(7), and 5(2) of the Code.

8.      In relation to the alleged breach of section 4(1)(b) of the Code, the complainant made specific reference to the words “clinically proven to work” and “this unique invention”.

9.      The advertiser entered into some correspondence with the Panel’s Executive Officer, seeking an extension of time in which to respond, which was granted.

10.  The advertiser provided some evidence in relation to the complaint.

11.  The Panel reviewed the evidence material provided by the advertiser and found that it related essentially to custom-made devices similar to the devices advertised (which are not custom-made). The Panel considered the evidence to provide modest support for claims that such devices could sometimes be effective for some consumers.

12.  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”.

13.  On the basis of the material before it, including the evidence provided by the advertiser, the Panel was satisfied that the claims made in the advertisement had not been adequately verified, were likely to arouse unwarranted expectations in relation to the product, and were misleading. These aspects of the complaint were therefore justified.

14.  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 found that the strong language used in the advertisement did convey that the advertised device was infallible or a guaranteed cure for snoring. The Panel therefore found that this aspect of the complaint was justified.

15.  Section 4(2)(i) of the Code prohibits representations that the goods advertised are safe, harmless, or free of side-effects. The words “you can stop your snoring naturally, comfortably, and safely” breached this section of the Code. This aspect of the complaint was therefore justified.

16.  Section 4(7) of the Code requires that testimonials included in advertisements for therapeutic goods “must be documented, genuine, not misleading and illustrate typical cases only.” The Panel did not accept that the testimonials in the advertisement could be considered typical, genuine, documented, and not misleading. This aspect of the complaint was therefore found to be justified.

17.  Section 5(2) of the Code prohibits advertisements that “refer, expressly or by implication, to serious forms of diseases, conditions, ailments or defects specified in Part 2 of Appendix 6, unless prior approval is given under the Therapeutic Goods Act 1989.” The diseases and conditions specified in Part 2 of Appendix 6 of the Code include “serious forms of” a wide range of health concerns. The advertisement contained references to severe asthma, epilepsy, sleep apnoea, and “other serious breathing difficulties”, without prior approval having been given to make such references. This aspect of the complaint was therefore justified.

18.  The Panel requests Quarry House International Pty Ltd, 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 device can offer benefits in relation to snoring, that it is guaranteed or certain to so, or that it is safe;

c)      not to use the representations in (b) above in any other advertisement unless Quarry House International Pty Ltd 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.

19.  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 19 April 2009

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).