Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2010-03-023 Metamucil

Meeting held 3 June 2010

1.      The complaint concerned a print advertisement published the March 2010 edition of Good Health magazine.

2.      The advertisement appeared on a page entitled “Talking Shop”. The page contained a number of advertisements in the form of advertorial, generally consisting of a product image and a paragraph relating to the product. The relevant part of the page was an advertisement for Metamucil headed “Boost Inner Health”.

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

4.      The advertisement promoted the product Metamucil.

5.      The advertiser was Proctor and Gamble Australia Pty Ltd.

6.      The publisher was ACP Magazines Ltd.

7.      The complainant was anonymous.

8.      The complainant alleged that the advertisement breached section 42C of the Act.

9.      The advertiser stated that the advertisement was “not a paid advertisement” but was “in fact an ‘added value editorial mention’”. The advertiser stated that an employee had been unaware of the need to obtain approval for such material and that clarification would be made to “avoid similar issues in the future”.

10.  The publisher expressed a view that the material was “not an ‘advertisement’ as defined under the Act” and that “section 42C of the Act did not apply due to the lack of valuable consideration”.

11.  Section 42C of the Act makes it an offence to publish certain advertisements for therapeutic goods in specified media that does not have an approval number, or to publish an advertisement without its approval number, and through reference to the Regulations, applies to “advertisements for designated therapeutic goods published or inserted, or intended to be published or inserted, for valuable consideration, in specified media.”

12.  The Panel noted that the advertisement was “added value” in connection with other advertising placed by the advertiser. On this basis, the Panel was satisfied that the “added value editorial mention” clearly constituted an advertisement published for valuable consideration falling within section 42C of the Act, and requiring approval under that section. The advertisement had not been approved and did not include an approval number.

13.  The complaint was therefore justified. The Panel considered the breach to be the responsibility of both the advertiser and the publisher.

14.  The Panel noted, without making any formal finding, that the advertisement was likely to breach section 6(3) of the Code in that it failed to include required statements.

15.  The Panel requests ACP Magazines Ltd and Proctor and Gamble Australia Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the advertisement from further publication; and,

b)      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.

Dated 13 August 2010

For the Panel

Jason Korke

Chairman

In this determination, unless otherwise specified:

c)      “the Act” means the Therapeutic Goods Act 1989;

d)     “the Regulations” means the Therapeutic Goods Regulations 1990;

e)      “the Code” means the Therapeutic Goods Advertising Code;

f)       “the Register” means the Australian Register of Therapeutic Goods;

g)      “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, or ma.