Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2010-03-008 Healing Gate and -009 Aqua Detox

Meeting held 3 June 2010

1.      Two complaints were received, relating to an internet advertisement published at the website www.naturaltherapypages.com.au.

2.      The advertisement included words such as “the most basic way of maintaining the health of the body is to expel the toxins from the body”, “because we are living in a polluted environment, various toxins remain accumulating in the body”, “the human body is like a giant magnet that attracts and holds toxins”, “heavy metals, partially oxidised fats, dissimilated proteins, cholesterol deposits, uric acid, plaque, lactic acid and the vast array of chemicals that pervade our water, air and food attach themselves in an ionized form to joints, organs, arteries, nerves, and tissues”, “these toxins disrupt normal body functions creating an environment for disease, allergies, and immune system problems”, “by issuing an alternating positive and negative ion charge during treatment, it makes it possible to remove unwanted toxic material without having to submit to days of body draining fasting”, “the Ion-Cleanse process clears the toxins accumulated in the body so that the body functions better, raising the immunity level and generally improving over all health”, “it is used in hospitals all over the world”, “helps to cure the symptoms of athlete’s foot as well as relief to pain in muscles and joint”, and many other claims.

3.      It also included a table showing “colours and objects in the water” which were said to relate to particular “material or area of the body”. This table included references to “detoxifying from the kidney, bladder, urinary tract, female/prostate area”, “detoxifying from joint”, “detoxifying from liver, tobacco, cellular debris”, “detoxifying from liver”, “detoxifying from gallbladder”, “lymphatic system”, “most likely yeast”, “heavy metals”, and “blood clot material.”

4.      The advertisement promoted the “Aqua Detox” foot spa.

5.      The advertiser was The Healing Gate.

6.      The publisher of the advertisement was Natural Therapy Pages.

7.      The complainant was anonymous.

8.      The complainant submitted one complaint in relation to the advertiser, and another in relation to the publisher. The Panel decided to consider the two complaints together.

9.      In relation to the advertiser, the complainant alleged breaches of sections 41FN, 42DL(1)(a), 42DL(1)(g), and 42DM(a) of the Act, and sections 4(1)(a), 4(2)(a), 4(2)(b), 4(2)(c), 4(2)(i), and 5 of the Code.

10.  In relation to the publisher, the complainant alleged breaches of sections 41FN, 42DL(1)(a), and 42DL(1)(g) of the Act, and sections 4(2)(a), 4(2)(c), and 5 of the Code.

The advertiser’s response to the complaint

11.  The advertiser expressed surprise in relation to the complaint, and stated that they had instructed the publisher to cancel the advertisement. The advertiser stated that they “had only advertised as per the paperwork that came with the machines and is readily available on the internet to anyone enquiring about detoxing with a footbath method”, and that “everyone [they] detox signs a statement that they are aware that the treatment is not intended to diagnose, cure, or treat any disease or health condition.”

12.  The publisher argued that responsibility for the complaint lay with the advertiser and not with the publisher.

13.  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.

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 is not included in the Register, and that therefore any of the material in the advertisement that presented the product as being for therapeutic use (as defined in the Act) would be sufficient to render the material in breach of section 42DL(1)(g). The Panel considered that many claims in the advertisement, including the claims relating to detoxification and the elimination of toxins from the body,  were therapeutic claims which ought not to have been made. The advertisement therefore breached section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

15.  Section 41FN of the Act relates do devices which are included in the Register. Since the advertised device is not included in the Register, this aspect of the complaint was not considered by the Panel.

16.  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”.

17.  In the absence of any relevant submission from the advertiser or the publisher, the Panel was satisfied that the claims made in relation to the advertised product were misleading in breach of section 4(2)(c) of the Code and were likely to arouse unwarranted expectations in breach of section 4(2)(a) of the Code. These aspects of the complaint were therefore justified.

18.  Section 4(2)(i) of the Code prohibits representations that the goods advertised are completely safe, harmless, or free of side-effects. The Panel did not find words in the advertisement that appeared to breach this section of the Code, and noted that the complaint did not direct the Panel to any such words. This aspect of the complaint was therefore not justified.

19.  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 advertisement breached section 5(2) of the Code, because of numerous references to toxins of such severity that they could cause harm to organs such as the liver and kidneys, or cause symptoms such as joint pain. This aspect of the complaint was therefore justified.

20.  Section 4(1)(a) of the Code is breached if any other section of the Code is breached. Similarly, section 42DM(1) is breached if the Code is breached. These aspects of the complaint were therefore justified.

21.  Section 42DL(1)(a) of the Act relates to prohibited representations. While the Panel was satisfied that the advertisement contained restricted representations (as noted in relation to section 5(2) of the Code, above), the Panel did not find that it contained prohibited representations. This aspect of the complaint was therefore not justified.

22.  The Panel found that the breaches were the responsibility of the advertiser.

23.  The Panel noted, without making any formal finding, that the advertisement appeared likely to breach section 6(3)(d) of the Code by failing to include required statements, section 4(2)(d) by abusing the trust or exploiting the lack of knowledge of consumers or containing language which could bring about fear or distress, and, as well, likely to breach section 6(3)(b) of the Code through inclusion of implied recommendation by a healthcare professional.

24.  The Panel requests Healing Gate, 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 has benefits in relation to expelling toxins from the body; eliminating, reducing or detoxifying heavy metals, partially oxidised fats, dissimilated proteins, cholesterol deposits, uric acid, plaque, lactic acid, or chemicals; aiding the health of joints, organs, arteries, nerves, tissues, or the immune system; aiding with diseases, allergies, or immune system problems; removing unwanted toxic material; enabling the body to function better; raising the immunity level; improving overall health; aiding with athlete’s foot; relieving joint or muscle pain; or aiding in the diagnosis of any conditions related to the kidney, bladder, urinary tract, “female/prostate area”, joints, liver, cells, gallbladder, or lymphatic system;

c)      not to use the representations in (b) above in any other advertisement*;

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.

25.  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 12 August 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).

*Under regulation 42ZCAI of the Regulations, the Panel may request that a representation not be used in any other advertisement unless the advertiser 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. Under the Panel’s procedures, the Panel will not ordinarily give additional consideration to such a matter unless significant new material that was not available at the time of the Panel’s determination has become available, or until at least 12 months have passed since the Panel’s request was made.