Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2010-01-001 Massage Slimming Belt and High Performance Slimming Belt

Meeting held 15 April 2010

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

2.      The first advertisement included words such as “Massage Slimming Belt”, “the new way not only to be massaged, but lose weight while you’re at it!”, “can massage your back, waist, tummy, neck, buttocks, thigh, and calf muscles whilst burning excess fat”, “start burning fat the easy way today”, “shape your body, burn excessive fat”, and “ideal for obese people to lose weight”.

3.      The second advertisement included words such as “High Performance Slimming Belt”, “the added benefit of increased blood circulation is the reduction of accumulated toxins in the muscles”, “these toxins are known to cause tightness in trouble areas like upper and lower back, hamstrings, and across the top of the shoulders”, “by strapping the belt to these areas you will experience instant relief”, “promotes a higher metabolism”, “increases the body’s ability to process nutrients”, “can help you achieve the figure you are targeting with its slimming function”, “used in conjunction with a sensible diet, it can be an effective means of burning body fat and weight reduction”, “reduces the need to go to the gym or get on the floor to do situps”, “increases blood flow to the area, reducing toxin build up”, and “helps to break down fat deposits and reduce waist size”.

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

5.      The advertisement promoted two products, a “Massage Slimming Belt” and a “High Performance Slimming Belt.”

6.      The advertiser was DealsDirect.com.au.

7.      The complainant was anonymous.

8.      The complainant expressed the following concerns about the advertisements:

a)      That they advertised one of the products as “ideal for obese people to lose weight”, which the Panel took to be an allegation of a breach of section 5(2) of the Code;

b)      That the claims relating to weight loss were “extremely hard to believe”, which the Panel took to be an allegation of breaches of sections 4(2)(a) and 4(2)(c) of the Code;

c)      That the advertisements were not “appropriately balanced with references to healthy energy controlled diets and exercise”, which the Panel took to be an allegation of a breach of section 7(3) of the Code.

9.      The complainant also drew the Panel’s attention to the references to increased blood flow and the reduction of accumulated toxins made in the second advertisement. The Panel took this aspect of the complaint to raise possible breaches of sections 4(2)(a) and 4(2)(c) of the Code.

10.  The advertiser stated that they were not the sponsor or importer of the products, but rather had obtained them locally “in good faith that they were compliant to all relevant standards and legislation required for the Australian market”. The advertiser stated that, in response to the complaint, the advertised products had been removed from sale and quarantined.

11.  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”.

12.  In the absence of any relevant submission from the advertiser, the Panel was satisfied that the representations in the advertisement relating to weight loss, slimming, and the removal of toxins from the body were misleading and were likely to arouse unwarranted expectations in relation to the advertised products. These aspects of the complaint were therefore justified.

13.  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 “obese people” in the first advertisement breached section 5(2) of the Code. This aspect of the complaint was therefore justified.

14.  Section 7(3) of the Code requires that advertisements making weight management claims must have an appropriate balance between those claims and references to healthy energy-controlled diet and physical activity. This section defines “weight management” to include weight loss, measurement reduction, clothing size loss and weight control/maintenance. The advertisements clearly fell within the ambit of section 7(3). The Panel did not consider that they conveyed the required balance, and therefore found this aspect of the complaint to be justified.

15.  The Panel also noted, without making any formal finding, that the advertisements appeared likely to breach section 42DL(1)(g) of the Act and section 6(3) of the Code.

16.  The Panel requests DealsDirect.com.au, 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 weight loss, slimming, or the reduction or elimination of toxins;

c)      not to use the representations in (b) above in any other advertisement unless DealsDirect.com.au 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.

17.  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).