Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-10-007 Moduko Detox Foot Pads

Meeting held 4 February 2010

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

2.      The advertisement included claims related to improving circulation, natural cleansing, absorbing impurities, speeding up the healing process, and aiding with joint stiffness, muscle aches, fatigue, sprains, strains, and arthritis.

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

4.      The advertisement promoted the product Moduko Foot Pads.

5.      The advertiser was DealsDirect.

6.      The complainant was anonymous.

7.      The complainant alleged that the advertisement breached section 42DL(1)(g) of the Act and section 4(2)(a) of the Code.

8.      The advertiser stated that the claims made in the advertisement were based on information provided by their supplier.

9.      The advertiser stated that as a result of the complaint the advertised product had been removed from sale on their website and that stock on hand was quarantined in their warehouse.

10.  Under regulation 42ZCAA of the Regulations, the person apparently responsible for an advertisement is the person who, based on the particulars of a complaint and the assessment of the Panel, appears to be responsible for requesting the publication of the advertisement.

11.  Where an advertiser publishes information regarding a product in an advertisement, it is a prima facie presumption that the advertiser is the person responsible for publishing that information even where it has been copied from material published by the product sponsor. Material that has been compiled from sources such as product packaging, sponsor websites, or other material may not be current, may not have been provided with the intention that it be reproduced in advertising by others, or may in some other way be deficient. Such material may have been reproduced without the consent, control, or authorisation of the product sponsor.

12.  If, therefore, the product sponsor or some other party is to be considered responsible for the information contained in the advertisement, rather than the advertiser, it would (at a minimum) be necessary for the advertiser to provide documentary evidence that the information was provided to the advertiser expressly for the purpose of advertising the product. This is not to say that retailers must hold evidence in the same way that product sponsors must. It is simply to say that if a retailer is in the business of advertising and selling therapeutic goods, it is not unreasonable to expect that retailer to take on the responsibility, at a minimum, of instituting a process whereby the accuracy of advertising claims is explicitly warranted by the product sponsor, and this warranty is documented.

13.  On balance, the Panel considered the advertiser, DealsDirect, to be the person responsible for publication of the advertisement.

14.  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 no evidence had been provided that the product is included in the Register, and was therefore satisfied that 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). The Panel considered that the claims relating to improving circulation, absorbing impurities, speeding up the healing process, and aiding with joint stiffness, muscle aches, fatigue, sprains, strains, and arthritis were therapeutic claims which ought not to have been made, and that the material therefore constituted a breach of section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

15.  Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”.

16.  In the absence of any evidence from the advertiser, the Panel was satisfied that the claims relating to improving circulation, absorbing impurities, speeding up the healing process, and aiding with joint stiffness, muscle aches, fatigue, sprains, strains, and arthritis were likely to arouse unwarranted expectations in relation to the advertised product. The Panel therefore found this aspect of the complaint justified.\

17.  The Panel noted, without making any formal finding, that the advertising appeared to breach section 6(3) of the Code by failing to include requirement statements.

18.  The Panel requests DealsDirect, 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 improving circulation, absorbing impurities, speeding up the healing process, or aiding with joint stiffness, muscle aches, fatigue, sprains, strains, or arthritis, together with any other claims that the advertised products are for therapeutic use;

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

Dated 28 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).