Complaints Register

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2010-07-010 Sudafed Nasal Spray

Meeting held 4 November 2010

1.      The complaint concerned a billboard advertisement.

2.      The advertisement included the words “nothing unblocks faster”.

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

4.      The advertisement promoted Sudafed Nasal Spray.

5.      The advertiser was Johnson & Johnson Pacific Pty Ltd.

6.      The complainant requested anonymity but acknowledged representing a commercial competitor of the advertiser.

7.      The complainant expressed the following concerns about the advertisement:

a)      That it was misleading in breach of section 4(2)(c) of the Code, because of the words “nothing unblocks faster”;

b)      That it breached section 6(3) of the Code because it lacked certain mandatory statements; and,

c)      That it breached section 42C of the Act because it lacked a required approval number.

8.      The advertiser argued that the “nothing unblocks faster” claim was factually correct, and provided material relating to the speed of effect of competing products in the Australian marketplace.

9.      The advertiser acknowledged the breaches of section 6(3) of the Code and section 42C of the Act, stating that they had been caused by the obscuring nature of the billboard frames. The advertiser undertook to rectify this problem in the future.

10.  As a preliminary matter the Panel noted that the complaint was not of a high standard, considering that it was a competitor complaint. The complainant provided no evidence in relation to the alleged breach of section 4(2)(c) of the Code.

11.  For this reason, the Panel was inclined to give no consideration to that aspect of the complaint. On balance, however, the Panel was of the view that it would be more helpful to make a finding in relation to it.

12.  Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”. The Panel found that the “nothing unblocks faster” did not constitute a claim that the advertised product was faster than all others, but rather that it was as fast as any other. On the basis of the material before it – and noting the failure of the complainant to provide any evidence in support of the allegation – the Panel did not find this claim to be misleading. This aspect of the complaint was therefore not justified.

13.  The Panel noted that although the advertisement had been approved and did have an approval number, this, and the mandatory statements, was obscured in some cases by the billboard frames; therefore  the placement of these requirements should take the structure of the billboard frames into account.

14.  The Panel was satisfied that the advertisement did not display certain mandatory inclusions, in breach of section 42C of the Act and section 6(3) of the Code. These aspects of the complaint were therefore justified.

15.  The Panel noted the undertaking provided by the advertiser, and decided to impose no sanctions.

Dated 14 December 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.