Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-10-011 Bamboosie Foot Patches

Meeting held 4 February 2010

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

2.      The advertisement included claims related to toxins, “the negative health symptoms that may have been caused by the toxic overload”, and relief of such symptoms. It stated that the advertised product could stimulate reflexology points.

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

4.      The advertisement promoted the product Bamboosies Foot Patches.

5.      The advertiser was Mediwise Pty Ltd.

6.      The complainant was anonymous.

7.      The complainant requested anonymity.

8.      The complainant alleged that the advertisement breached section 4(2)(a) of the Code and section 22(5) of the Act.

9.      The advertiser stated that they “agree that [the text in the advertisement] may unintentionally contravene 4(2)(a) and hence after receiving the complaint.... immediately on the same day modified this section to remove all text in question.”

10.  In relation to the alleged breach of section 22(5) of the Act, the advertiser noted that the advertised product is a medical device to which section 22(5) did not apply.

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

12.  The Panel was satisfied that the advertisement was likely to arouse unwarranted expectations as to the effectiveness of the advertised products, through unsubstantiated claims that ordinary consumers are likely to be experiencing health problems due to “natural and synthetic toxins” and “toxic overload”, through the claim that the advertised product could remove such toxins or aid “detoxification”, and through the claim that the advertised product could alleviate symptoms caused by toxins.

13.  Section 22(5) of the Act states that sponsors of registered and listed 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”. As section 22(5) of the Act does not extend to medical devices, it does not apply to the advertised product. This aspect of the complaint was therefore not justified.

14.  The Panel also noted, without making any formal finding, that the advertisement appeared very likely to breach sections 4(2)(d) and 4(2)(e) of the Code through claims that “our bodies can’t cope”, and that toxins such as heavy metals may be common and present at harmful levels in food and drinks.

15.  The Panel requests Mediwise 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 ordinary consumers are likely to be experiencing health problems due to “natural and synthetic toxins” or “toxic overload”, that the advertised product can remove such toxins or aid or cause “detoxification”, or that the advertised product can alleviate symptoms caused by toxins;

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

16.  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 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).