Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-11-006 Happy Natural Therapies Ear Candles

Meeting held 4 February 2010

1.      The complaint concerned two internet advertisement published as “google ads” during November 2009.

2.      The first advertisement read, “Order Ear Candles Online – HappyNaturalTherapies.com/EarCandle Ear Candling Softens Earwax, Heals and Protects the Ear. Order Yours Now.”

3.      The second advertisement read, “Buy Ear Candles Online – HappyNaturalTherapies.com/EarCandle Retail & Wholesale. Safe & Healing. 1 pr Just $8. Order Online Today.”

4.      The advertisement promoted Happy Natural Therapies Ear Candles.

5.      The advertiser was Happy Natural Therapies.

6.      The complainant was anonymous.

7.      The complainant alleged that the advertisements breached sections 4(1)(b), 4(2)(c), and 4(2)(i) of the Code.

8.      The complainant also alleged that the advertisements breached section 42DL(1)(a) of the Code. The Panel did not give consideration to this aspect of the complaint as it did not appear to apply to the advertisement.

9.      The advertiser stated that the advertisements had been amended in response to the complaint.

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

11.  In the absence of any evidence from the advertiser, the Panel was satisfied that the claims that the advertised products could soften earwax, heal ears, or protect ears had not been verified and were misleading. These aspects of the complaint were therefore justified.

12.  Section 4(2)(i) of the Code prohibits representations that the goods advertised are completely safe, harmless, or free of side-effects. The advertisement represented the advertised product to be “safe” without qualification. This aspect of the complaint was therefore justified.

13.  The Panel requests Happy Natural Therapies, 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 products can soften earwax, heal ears, or protect ears;

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

Dated 3 May 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).