COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-03-015 Za-Pet

Meeting held 4 February 2010

1.      The complaint concerned a print advertisement published the February-March 2009 edition of Nexus magazine.

2.      The advertisement was headed “sick and tired of being unwell” and included claims related to “restless legs”, diabetes, cancer, “get[ting] rid of parasites, worms, and viruses”, and “bio-electronic therapy... kill[ing] the viruses and parasites in your body, that cause Cancer, Diabetes, Arthritis, Muscular Pain, and all viral/parasitic conditions”. It included the claim that “everybody worldwide is infected by at least 12 of over 1000 parasites, bacteria, fungi, and viruses that can affect humans”.

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

4.      The advertisement promoted the product Za-Pet in Nexus magazine.

5.      The advertiser was Za-Pet.

6.      The complainant requested anonymity.

7.      The complainant alleged that the advertisement breached section 5(2) of the Code through references to diabetes and arthritis.

8.      Under sub-regulation 42ZCAH(1), the Panel is empowered to raise matters other than those specified in the complaint, where the Panel is satisfied that the advertisement to which the complaint relates contains matter that is not mentioned in the complaint, which may contravene the Act, Regulations, or the Code in other ways. The Panel was so satisfied and raised the following additional matters:

a)      That the advertisement could breach section 42DL(1)(g) of the Act;

b)      That the advertisement could breach sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code through claims that the advertised product could “kill the viruses and parasites in your body, that cause Cancer, Diabetes, Arthritis, Muscular Pain, and all viral/parasitic conditions”;

c)      That the advertisement could breach section 4(4) of the Code; and,

d)     That the advertisement could breach section 5(1) of the Code.

9.      In relation to the original complaint, the advertiser stated that the words “will kill the viruses and parasites in your body that cause cancer, diabetes, arthritis...” would be replaced with the words “can kill the viruses and parasites in your body that cause cancer, diabetes, arthritis...”

10.  The advertiser stated that “the claims are based on Dr Hulda Clark’s research where she found the virus Eurytrema present in every case of diabetes, never in healthy people”, and referred to other research on matters such as “blood electrification”.

11.  In response to the additional matters raised by the Panel the advertiser again offered to alter the words used in the advertisement, this time by removing “any references to particular diseases”.

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). It was very clear that the advertisement included many therapeutic claims which ought not to have been made, and that it therefore breached 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.  The advertiser did not provide evidence to support the claims made in the advertisement, other than to make general reference to research on matters such as “blood electrification” and killing cancer cells, without providing copies of the research in question. The Panel was satisfied that the claims related to “killing the viruses and parasites in your body, that cause Cancer, Diabetes, Arthritis, Muscular Pain, and all viral/parasitic conditions” had not been verified, were likely to arouse unwarranted expectations in relation to the product, and were misleading. These aspects of the complaint were therefore justified.

15.  Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”, and requires that publication of scientific research results should “identify the researcher and financial sponsor of the research.” The Panel was satisfied that statements in the advertisements amounted to scientific information or scientific research results, and did that the information was not accurate or balanced, and was misleading. The Panel therefore considered that this aspect of the complaint was justified.

16.  Section 5(1) of the Code prohibits advertisements that “contain, expressly or by implication, a representation specified in Part 1 of Appendix 6.” The representations specified in Part 1 of Appendix 6 of the Code include representations regarding the treatment, cure, or prevention of neoplastic diseases. 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.

17.  It was clear that the advertisement breached section 5 of the Code through references to cancer and diabetes, and through unqualified references to “all viral/parasitic conditions” and “get[ting] rid of parasites, worms, and viruses”. These aspects of the complaint were therefore justified.

18.  The Panel also noted, without making any formal finding, that the advertisement was likely to have breached sections 4(2)(d), 4(2)(e) and 4(6)(b) of the Code.

19.  The Panel requests Za-Pet, 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 restless legs, diabetes, cancer, parasites, worms, viruses, arthritis, muscular pain, viral conditions, or parasitic conditions, 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 Za-Pet 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 in Nexus magazine 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 is to appear in Nexus magazine 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.