Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-11-001 Pain No More

Meeting held 4 February 2010      

1.      The complaint concerned a print advertisement published in the 18 October 2009 edition of the Sunday Telegraph newspaper.

2.      The advertisement was headed “if you suffer from Chronic Joint Pain, Arthritis, Gout, Osteoarthritis, Inflamed Joints, Swollen Joints, Joint Tenderness, Joint Immobility, Back Pain or Muscle Pain... here’s some great news! New herbal and nutritional formula now available for the relief of arthritic pain.” It included many other representations related to pain, “more rapid improvement” of symptoms, and “healthier bones, joints, and cartilage”. It featured a large icon stating that the product was “new” and a pack shot of the product which was dominated by the words “pain no more”.

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

4.      The advertisement promoted the product Pain No More.

5.      The advertiser was Totally Natural Products.

6.      The complainant requested anonymity but acknowledged representing a commercial competitor of the advertiser.

7.      The complainant expressed the following concerns about the advertisement:

a)      That the words “pain no more” had a “definite meaning indicating pain free which is a direct contradiction to ‘temporary arthritis relief’”, and that these words could cause the advertisement to breach sections 4(2)(a), 4(2)(g), and 4(2)(h) of the Code;

b)      That the “new” icon in the advertisement was misleading in breach of section 4(2)(c) of the Code as “this product has previously been advertised 22 Feb 2009 in the same medium... it is not a ‘new product’ it is just a ‘new look’ in packaging [as] the product formula has remained the same”;

c)      That the brand name “totally natural products” was misleading as it implied that every aspect of the product was natural, and that this could cause the advertisement to breach sections 4(2)(c) and 4(2)(d) of the Code.

8.      In relation to the words “pain no more”, the advertiser stated that the product had been relisted with the name “Pain No More Temporary Arthritis Relief” and that this was done to “clearly define that the product was not an absolute resolution of pain, and to highlight that the product is for the ‘temporary relief of arthritis’.

9.      In relation to the claim that the advertised product was “new”, the advertiser stated that the product was under twelve months old at the time of the advertisement, whether or not this period was measured from the time of the original listing of the “Pain No More” product in December 2008, or of the “Pain No More Temporary Arthritis Relief” product in July 2009.

10.  In relation to the brand name “totally natural products”, the advertiser noted that this matter had previously been determined by the Panel.

11.  As a preliminary matter, the Panel noted that the brand name “Totally Natural Products” was a matter that had already been dealt with by the Panel, and decided not to give it further consideration at the present time. The Panel noted that this did not preclude the possibility of giving consideration to the question in the case of a future complaint.

12.  Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”. Section 4(2)(g) of the Code prohibits representations that therapeutic goods are “infallible, unfailing, magical, miraculous”, or that they are “a certain, guaranteed or sure cure”. Section 4(2)(h) of the Code prohibits advertisements for therapeutic goods that “contain any claim, statement or implication that it is effective in all cases of a condition”.

13.  Whether or not the words “pain no more” breached these sections of the Code was not dependent on the name of the product. The Panel did not consider it relevant whether the product was Listed on the ARTG with the name “pain no more” or “pain no more temporary arthritis relief”. Rather, the Panel’s concern was with the representation conveyed by the words in the total context of the advertisement.

14.  The Panel was satisfied that the words “pain no more” were of such prominence and emphasis that they represented the advertised product to act as a certain cure for pain, and to be invariably effective for pain. The Panel was satisfied that such representations were likely to arouse unrealistic expectations of the product’s effectiveness. The Panel considered, and rejected, the advertiser’s argument that the words “Pain No More” were sufficiently modified by the context of the advertisement to constitute a less strong claim. These aspects of the complaint were therefore justified.

15.  Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”.

16.  The Panel noted that the product appeared to be less than twelve months old when the advertisement appeared. On this basis the Panel was satisfied that the use of the word “new” was not misleading at the time the advertisement was published. The Panel noted, however, that this time period was based on the introduction of the formula in December 2008, and not on the introduction of a new name and trivially different packaging in July 2009.

17.  This aspect of the complaint was not justified.

18.  The Panel requests Totally Natural Products, 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 can cure or offer permanent relief from pain or arthritis pain, that it can offer more than temporary relief from pain or arthritis pain, or that it is invariably effective for pain or arthritis pain, including the representation embodied by the words “pain no more”;

c)      not to use the representations in (b) above in any other advertisement unless Totally Natural Products 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, including a recommendation that the inclusion of the goods on the Register be cancelled.

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).