Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-11-013 Scholl Orthaheel

Meeting held 18 March 2010

1.      The complaint concerned a print advertisement published in the Dec 2009-Jan 2010 edition of Health Smart magazine.

2.      The advertisement was headed “pain relief is only two feet away” and made claims related to heel, ankle, and knee pain. It stated that the advertised product range “minimises stress in the foot region and corrects the posture and alignment to provide relief from related aches and pains.” The statement was qualified by a disclaimer stating that it “refers only to people who experience pronation when walking and running.”

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

4.      The advertisement promoted Scholl Orthaheel range of footwear products.

5.      The advertiser was SSL Australia Pty Ltd.

6.      The complainant was anonymous.

7.      The complainant alleged that the advertisement breached sections 4(1)(b), 4(2)(a), 4(2)(b), 4(2)(h), and 4(4) of the Code.

8.      The advertiser acknowledged that they had “overlooked and not referenced the research paper below which supports orthotics in heel, ankle, knee, and related aches and pains for people who experience pronation.” This appeared to be in relation to the alleged breach of section 4(4) of the Code.

9.      In relation to the alleged breaches of sections 4(2)(a), 4(2)(b), and 4(2)(h) of the Code, the advertiser stated that they had “reviewed the advertisement and... believe [they] have not breached sections 4(2)(a), 4(2)(b), and 4(2)(h) of the Code as the claims made in the advertisement were in fact qualified on the copy.”

10.  The advertiser provided the name of the study to which they referred but did not provide a copy of it, or any other evidence to support the claims made in the advertisement.

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

12.  In the absence of any evidence from the advertiser, the Panel was satisfied that the claims that the advertised products could correct posture or alignment, or provide relief from aches and pains in the “foot region”, heel, ankle or knee, whether read with or without the “disclaimer” related to pronation, had not been verified and were likely to arouse unwarranted expectations in relation to the effectiveness of the advertised products. These aspects of the complaint were therefore justified.

13.  Section 4(2)(b) of the Code prohibits advertisements that are “likely to lead to consumers self-diagnosing or inappropriately treating potentially serious diseases”. 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”. The Panel did not find words in the advertisement that appeared to support any allegation that these sections of the Code had been breached. These aspects of the complaint were therefore not justified

14.  Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”, and requires that publication of scientific research results should “identify the researcher and financial sponsor of the research.” The advertisement published scientific research results without identifying the researcher and financial sponsor of the research, in breach of section 4(4) of the Code. This aspect of the complaint was therefore justified.

15.  The Panel requests SSL Australia 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 the advertised products have benefits in relation to correcting posture or alignment or in relieving aches and pains in the “foot region”, heel, ankle or knee;

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