Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2009-12-010 Bio Magnetic Products (Pulse Pharmacy)

Meeting held 15 April 2010

1.      The complaint concerned internet advertisements published at the website www.pulsepharmacy.com.au.

2.      The advertisements promoted a range of “magnetic” products and included claims related to conditions such as arthritis, sprains, tendonitis, RSI, carpal tunnel, ligament or deep tissue damage, sporting injuries, tired and sore feet, shin splints, leg cramps, inflammation, diabetes, corns, spurs, circulation problems, lower back pain, pinched nerves, sciatica, “a degenerative condition”, and tennis elbow.

3.      They referred to “powerful bipolar therapeutic magnets”, improving peripheral circulation, and promoting the body’s natural healing process.

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

5.      The advertisement promoted a number of Bio Magnetic products.

6.      The advertiser was Pulse Pharmacy.

7.      The complainant requested anonymity.

8.      The complainant alleged that the advertisements breached sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(g), 4(2)(h), 4(5), and 5 of the Code.

9.      The advertiser responded by stating that “as a pharmacy group we are not the appropriate people to defend specific therapies being magnetic, reflexology or any other therapy, nor claims relating to the use of those therapies or products.”

10.  The advertiser stated that they “will not publish in the future, any references to magnetic products unless it is compliant with the Code.”

11.  As a preliminary matter, the Panel noted the argument of the advertiser that they were “not the appropriate people to defend specific therapies being magnetic, reflexology or any other therapy, nor claims relating to the use of those therapies or products.”

12.  Under regulation 42ZCAA of the Regulations, the person apparently responsible for an advertisement is the person who, based on the particulars of a complaint and the assessment of the Panel, appears to be responsible for requesting the publication of the advertisement. It should be clear that where a publisher of a commercial website publishes information regarding therapeutic goods that are for sale by means of that website, and offers those goods for sale, that publisher bears the prima facie responsibility for ensuring that the information is accurate and not misleading, and does not otherwise breach the Code, Act, or Regulations.

13.  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”.

14.  In the absence of any relevant submission from the advertiser, the Panel was satisfied that the claims relating to conditions such as arthritis, sprains, tendonitis, RSI, carpal tunnel, ligament or deep tissue damage, sporting injuries, tired and sore feet, shin splints, leg cramps, inflammation, diabetes, corns, spurs, circulation problems, lower back pain, pinched nerves, sciatica, “a degenerative condition”, and tennis elbow, and the claims related to improving peripheral circulation and promoting the body’s natural healing process, had not been verified, were misleading, and were likely to arouse unwarranted expectations in relation to the advertised products. These aspects of the complaint were therefore justified.

15.  Section 4(2)(d) of the Code prohibits advertisements which “abuse the trust or exploit the lack of knowledge of consumers or contain language which could bring about fear or distress.” The Panel did not find words in the advertisements that appeared likely to breach this section of the Code. This aspect of the complaint was therefore not justified.

16.  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”. The Panel did not find words in the advertisements that appeared likely to breach these sections of the Code. These aspects of the complaint was therefore not justified.

17.  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, and prohibits the inclusion in advertisements of comparisons that “imply that the therapeutic goods, or classes of therapeutic goods, with which comparison is made, are harmful or ineffectual.” The Panel did not find words in the advertisements that appeared likely to breach this section of the Code. This aspect of the complaint was therefore not justified.

18.  Section 5(2) of the Code prohibits advertisements that “refer, expressly or by implication, to serious forms of diseases, conditions, ailments or defects specified in Part 2 of Appendix 6, unless prior approval is given under the Therapeutic Goods Act 1989.” The diseases and conditions specified in Part 2 of Appendix 6 of the Code include “serious forms of” a wide range of health concerns. The Panel was satisfied that the reference to diabetes in one of the advertisements breached this section of the Code. This aspect of the complaint was therefore justified.

19.  The Panel requests Pulse Pharmacy, 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 conditions such as arthritis, sprains, tendonitis, RSI, carpal tunnel, ligament or deep tissue damage, sporting injuries, tired and sore feet, shin splints, leg cramps, inflammation, diabetes, corns, spurs, circulation problems, lower back pain, pinched nerves, sciatica, degenerative conditions, tennis elbow, peripheral circulation, or the body’s natural healing processes;

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

20.  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.

Dated 28 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).