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COMPLAINTS RESOLUTION PANEL DETERMINATION
Complaint 2009-12-007 Calendulis Plus Cream
Meeting held 18 March 2010
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Complaint summary
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Complainant
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Requested anonymity
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Advertiser
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Mel Sinclair
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Subject matter of complaint
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Website advertisement
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Type of determination
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Final
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Sections of the Code, Regulations or Act found to have been breached*
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Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(i), 4(5), 4(6)(b), 4(7)
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Sections of the Code, Regulations or Act found not to have been breached*
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None
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Sanctions
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Withdrawal of advertisement
Withdrawal of representations
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* only sections of the Code, Act, or Regulations that were part of the complaint or were raised by the Panel are listed
The advertisement(s)
1. The complaint concerned an internet advertisement published at the website www.eczema.com.au.
2. The advertisement covered several pages and included words such as “as a registered nurse, I have seen skin conditions such as Eczema and Psoriasis at their worst”, “Grahams Natural Alternatives is Australia’s leading natural eczema treatment used by thousands of delighted customers”, “order some relief today”, “the #1 Natural Treatment for Eczema and Psoriasis!”, “all natural”, “safe for babies”, “Mel Sinclair, one of the world’s leading psoriasis and eczema experts”, “Mel is a Registered Nurse and has found her niche providing information and care to those who suffer from these conditions”, “she has nursed for well over 20 years now and has extensive experience from working in Intensive Care, Cardiac care, Specialist Children’s Wards, specialists skin care clinic, acute care nursing agency in Melbourne, and much more”, “aids in the repair of skin”, “hastens the healing time of damaged skin”, “anti-inflammatory and antibacterial properties”, “relieves itching, redness, and dry skin”,
3. The advertisement also included many “before and after” images and testimonials, containing claims relating to eczema relief, “severe atopical eczema”, and words such as “I tried eczema bath oils and moisturisers in conjunction with cortisone creams/ointments and nothing really had any effect until I tried your product”, “my 9 week old baby has got eczema all over his tiny body the cream cleared it up in a week – it was so bad he was weeping in places”, and “my legs and arm patches have all but gone [and] this is the best result in 40 years of trying every form of conventual [sic] treatment”.
4. It included numerous references to purchasing goods, such as large graphics stating “Ready to order? Get started now!” and price and product information.
5. An excerpt of the advertisement can be viewed in the relevant Appendix to this determination.
6. The advertisement promoted Calendulis Plus Cream.
7. The advertiser was Mel Sinclair.
8. The complainant requested anonymity.
9. The complainant alleged that the advertisement breached sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(i), 4(5), 4(6)(b), and 4(7) of the Code.
The advertiser’s response to the complaint
10. The advertiser stated that “the material on the web site... is for information” and said, “we work very hard at providing a terrific resource for eczema and psoriasis sufferers and take very seriously our undertaking to our readers to provide accurate information.” The advertiser also said “the entire web site is not constructed to directly and indirectly sell, promote, and supply only the Grahams range of products – on this basis I believe the web site information does not fall under the definition of an ‘advertisement’”.
11. The advertiser stated that she did not endorse the advertised product “in any part of the referenced web site copy the complainant specifies (or on any part of the web site not specified)”, and that “the detailing of [her] qualifications and experience are not inherent endorsements”.
12. The advertiser stated that, in relation to the words “the #1 natural treatment for Eczema and Psoriasis... safe for babies”, the complaint “has some perfectly good points” and that the words had therefore been removed from the website.
13. In relation to the aspects of the complaint relating to testimonials and photos, the advertiser responded, “I reject this complaint completely” and asserted that “the photos... are quite typical.”
14. An advertisement for therapeutic goods is defined in the Act to include “any statement, pictorial representation or design, however made, that is intended, whether directly or indirectly, to promote the use or supply of the goods.”
15. The Panel was satisfied that the website as a whole clearly constituted an advertisement for therapeutic goods including the Calendulis Plus Cream product that was raised in the complaint. In reaching this conclusion the Panel noted that the website included numerous exhortations asking consumers to “order some relief today” or “get started [ordering] now!”, and made reference to “our 100% secure online store” and a “printable order form”, and included considerable amounts of product and price information.
16. 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”. Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”. Section 4(5) of the Code requires that comparisons made in advertisements must be balanced and must not be misleading or likely to be misleading.
17. The Panel noted that the complainant alleged that the advertisement breached these sections of the Code in relation only to a single claim, that the advertised product is “the #1 treatment for Eczema and Psoriasis... [and is] safe for babies”. For this reason the Panel did not consider whether other claims in the advertisement could have breached these sections of the Code.
18. In the absence of any relevant submission from the advertiser, the Panel was satisfied that the claim breached sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(5) of the Code. These aspects of the complaint were therefore justified.
19. Section 4(2)(i) of the Code prohibits representations that the goods advertised are completely safe, harmless, or free of side-effects. The Panel noted that the website advertisement represented the cream to be “safe for babies” without qualification. This aspect of the complaint was therefore justified.
20. Section 4(6)(b) of the Code prohibits representations that therapeutic goods are endorsed by healthcare professionals. The advertisement clearly represented Mel Sinclair to be a healthcare professional, and indeed claimed that she is “one of the world’s leading experts on eczema and psoriasis”. The overall presentation of the website was such as to convey a very strong impression that the website content – including the content offering products for sale – had been carefully selected by Mel Sinclair as the representing the best options for consumers visiting the site. The Panel was therefore satisfied that the website represented the advertised products as being endorsed by a healthcare professional. This aspect of the complaint was therefore justified.
21. Section 4(7) of the Code requires that testimonials included in advertisements for therapeutic goods “must be documented, genuine, not misleading and illustrate typical cases only.” The advertiser provided no evidence, other than a bald assertion, that the testimonials (both written and in the form of “before and after” photographs) were genuine, not misleading, and illustrative of typical cases only. Nor did the advertiser provide documentary material supporting the testimonials. On the basis of the material before it, and noting that the testimonials made strong claims regarding the beneficial effects of the advertised products, the Panel did not accept that the testimonials could be considered documented, genuine, not misleading, and illustrative of typical cases only. This aspect of the complaint was therefore found to be justified.
22. The Panel also noted, without making any formal finding, that the advertisement appeared to breach section 6 of the Code by failing to include certain mandatory statements.
23. The Panel requests Mel Sinclair, 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 is the “#1” treatment for eczema and psoriasis, or that it is safe or free of side-effects, together with any representations embodied by the “before and after” photographs and testimonials included in the advertisement;
c) not to use the representations in (b) above in any other advertisement unless Mel Sinclair 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 representations have 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.
24. 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).
Appendix B: Excerpt of the Advertisement
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