Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-10-009 Swisse Ultiboost Eye

Meeting held 21 January 2010

Complaint summary
Complainant	Blackmores Ltd
Advertiser	Swisse Vitamins Pty Ltd
Subject matter of complaint	Website advertisement
Type of determination	Final
Sections of the Code, Regulations or Act found to have been breached*	Act section 22(5) Code section 5(2)
Sections of the Code, Regulations or Act found not to have been breached*	None
Sanctions	Withdrawal of advertisement Withdrawal of representations

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

2.      The advertisement included the words “recommended for people who experience problems with vision or as a preventative to maintain healthy eyes and provided vital antioxidants to help protect against degenerative eye conditions such as macular degeneration and cataracts”.

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

4.      The advertisement promoted the product Swisse Ultiboost Eye.

5.      The advertiser was Swisse Vitamins Pty Ltd.

6.      The complainant was Blackmores Ltd, a commercial competitor of the advertiser.

7.      The complainant alleged that the advertisement breached section 22(5) of the Act and section 5(2) of the Code.

8.      The advertiser acknowledged the alleged breaches and stated that the relevant material had been removed from the website.

9.      The advertiser provided a copy of revised text from the website.

10.  As a preliminary matter, it should be noted that the Panel did not review the revised text provided by the advertiser and that this determination makes no finding as to whether that revised text complies with the Code.

11.  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.

12.  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”.

13.  As the advertiser acknowledged, the advertisement breached these provisions.

14.  The Panel requests Swisse Vitamins 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 relating to serious eye conditions including macular degeneration, visual impairment, cataracts, treatment of eye damage, prevention of degenerative eye conditions, and blindness, together with any other representations falling outside the Listed indications for the advertised product;

c)      not to use the representations in (b) above in any other advertisement unless Swisse Vitamins 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.

15.  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).