Complaints Register

Complaint 2009-11-003 and 2010-01-009 Skechers Shape-Ups

Meeting held 18 March 2010

Complaint summary
Complainants	Requested anonymity
Advertiser	Skechers
Subject matter of complaint	Print and website advertisements
Type of determination	Final
Sections of the Code, Regulations or Act found to have been breached*	Act section 42DL(1)(g)
Sections of the Code, Regulations or Act found not to have been breached*	None
Sanctions	None

1.      There were two complaints which concerned a number of advertisements in print, as well as an advertisement at the website www.skechers.com.au.

2.      The advertisement made claims of benefits such as “shaping up while you work” and stated that the advertised products were designed to provide such benefits as weight loss, tone muscles, and improve posture.

3.      Excerpts of the advertisements can be viewed in the relevant Appendix to this determination.

4.      The advertisements promoted Skechers Shape-Ups footwear products.

5.      For the purposes of determining the complaint, the Panel regarded the advertiser to be Skechers. However, some of the advertisements appeared to be the responsibility of retail customers of Skechers.

6.      The complainants requested anonymity. The first complaint was made by a person representing a commercial competitor of the advertiser. The second complaint, though nominally from a consumer, clearly adopted the wording and formatting of the first complaint and was, in the Panel’s view, of such similarity to the first complaint that it ought to be regarded as also being a complaint from a commercial competitor.

7.      The complainants raised a number of concerns in relation to the advertisements. Many of these concerns related to the efficacy of the advertised products and the evidence supporting the claims made. These aspects of the complaint were not, in the Panel’s view, clearly established by the complainants. Given that the complaints appeared to have been made by commercial competitors of the advertiser, the Panel decided not to consider these aspects of the complaints in the absence of a clear argument from the complainants, supported by evidence, as to why the products might not have the benefits claimed.

8.      The complainants also alleged that the advertisements promoted therapeutic goods that were not “TGA approved.” The Panel took these aspects of the complaints to allege breaches of section 42DL(1)(g) of the Act.

9.      The Panel confined its consideration to this aspect of the complaint.

10.  The advertiser, through legal counsel, provided a substantial amount of evidence in support of the claims made in the advertisements. The Panel noted this material but, given its decision not to consider those aspects of the complaints which related to efficacy, did not review or assess the evidence material.

11.  The advertiser acknowledged that the advertised products were not included in the Register, and stated that since the complaint was made, the products had been entered into the Register. The advertiser stated that this step was taken as a matter of caution, and did not constitute an admission that the products were necessarily therapeutic goods.

12.  Therapeutic goods are defined in the Act to include goods that are represented in any way to be for therapeutic use. Therapeutic use is defined to include use in or in connection with influencing, inhibiting, or modifying a physiological process in persons.

13.  The Panel was satisfied that a number of claims made in the advertisements constituted representations that the advertised products were for therapeutic use as defined in the Act. As examples, the Panel noted claims on the advertiser’s website related to promoting weight loss, improving blood circulation, improving posture, reducing cellulite, and tightening abdominal muscles.

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 the product was not included in the Register at the time the advertisements were published, and that they therefore breached of section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

15.  The Panel noted, without making any formal finding, that the advertising appeared likely to breach sections 4(6)(b) and 7(3) of the Code.

16.  In view of the fact that the advertiser had, since the time of the complaint, caused the advertised products to be entered in the Register, the Panel decided to impose no sanctions.

Dated 29 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).