Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-09-004 Herbalcleanse website

Meeting held 4 February 2010

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

2.      The advertisement included banner advertisements directing consumers to a second website, www.huldaclarkzappers.com, which contained extensive claims relating to a number of serious medical concerns.

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

4.      The advertisement promoted Dr Hulda Clark Zapper devices.

5.      The advertiser was Herbal Cleanse.

6.      The complainant requested anonymity.

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

8.      The advertiser stated that the complaint appeared to be “about a banner ad that directs people to the Hulda Clark Zapper site” and that the advertiser was “not actually selling any zappers on [their] site, or selling any products personally” but rather that they “offer advertising... for others... where people can upload their own images and links and place their ads on [the site] ion the header, in the sidebar, and in the directory via an automated ad network plug-in”.

9.      The advertiser stated that the relevant banner advertisement had been removed.

10.  As a preliminary matter, the Panel noted that the representations that were the subject of the complaint were to be found on the website www.huldaclarkzappers.com, and could be read by consumers after clicking a banner on the website www.herbalcleanse.com.au.

11.  The Panel was satisfied that, in including the banner advertisement on the www.herbalceanse.com.au website, the advertiser was in effect making the representations that were complained about. This was so regardless of whether the advertiser directly sold the advertised products.

12.  It was clear that the representations found on the www.huldaclarkzappers.com website did breach the Code in the ways alleged by the complainant. The complaint was therefore justified.

13.  The Panel requests Herbal Cleanse, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the advertisement from further publication;

b)      to withdraw the representations conveyed by the inclusion of the banner advertisement on the website;

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

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.

Dated 19 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).