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  Tuesday 25 November 2014
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Date of Meeting: 19/01/12
Code: 2011/10/008
Product: Hair Active
Complainant: Requested anonymity
Respondent: Hair Active Pty Ltd
Finding: Justified
Sections Found Justified: Act section 42DL(1)(g); Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(i)
Sections Found Not Justified: None
Action: Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-10-008 Hair Active

Meeting held 19 January 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


Hair Active Pty Ltd


Subject matter of complaint


Website and radio advertisements


Type of determination


Final


Sections of the Code, Regulations or Act found to have been breached*


Act section 42DL(1)(g)

Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(i)


Sections of the Code, Regulations or Act found not to have been breached*


None


Sanctions

 


Withdrawal of representations

Withdrawal of advertisement


 

 

 

 

 

 

 

 


* only sections of the Code, Act, or Regulations that were part of the complaint or were raised by the Panel are listed
The advertisement(s)


1.      The complaint concerned an internet advertisement published at the website www.hairactive.com.au and a radio advertisement broadcast on 2GB during September 2011.

2.      The advertisements contained claims such as “applied topically, HairActive by Follipep activates stem cells present in one’s own scalp, to promote new hair growth”, “stimulates stem cell proliferation”, “100% safe”, “increases blood circulation”, “changes white/greying hairs back to their original...  colour”, “supports cellular health and function”, “hair re-growth formula with active stem cell technology”, “clinically trial/tested”, and many other claims.

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


The product(s)


4.      The advertisement promoted the product Hair Active.


The advertiser(s)


5.      The advertiser was Hair Active Pty Ltd.


The complaint


6.      The complainant requested anonymity.

7.      The complainant expressed concern that the “advertised product does not meet the claims made on the radio ad and on the website”, and stated that they were “very sceptical about claims made in the ad by the radio announcer”. The complainant also expressed concern about the product in a more general sense, noting that the advertiser had “a contact address of Hollywood in the ‘United States of America’ as well as a PO Box in Toorak Victoria”, and that they “could not find a contact name on the website.”

8.      The Panel considered the complaint to raise possible breaches of sections 4(1)(b) and 4(2)(a) of the Code.


Additional matters raised by the Panel


9.      Under sub-regulation 42ZCAH(1), the Panel is empowered to raise matters other than those specified in the complaint, where the Panel is satisfied that the advertisement to which the complaint relates contains matter that is not mentioned in the complaint, which may contravene the Act, Regulations, or the Code in other ways. The Panel was so satisfied and raised the following additional matters:

a)      Possible breaches of section42DL(1 )(g) of the Act, because therapeutic goods promoted in the advertisement may not be included in the Australian Register of Therapeutic Goods;

b)      Possible breaches of section 4(2)(i) of the Code because the advertised product(s) are stated to be "100% safe"; and,

c)      Possible breaches of sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(2)(d) of the Code because of the representations about the effects or benefits of the advertised product(s).


The advertiser’s response to the complaint


10. The advertiser stated that, in response to the complaint, they had removed the words “100% safe” from their website. They stated that “the active ingredients in [the] products are listed with the ICID”. The advertiser provided a copy of a “Certificate of Manufacture” listing product ingredients and some information relating to product safety.

11. The advertiser stated that any information provided in their response was “provided on the provision that the TGA maintains this information private and confidential, to be used only in-house, this is to evaluate the concerns raised by the TGA”.

12. The advertiser also stated that “Hair Active is a cosmetic product.”

13. The advertiser stated that “the actives that are contained in Hair Active have been shown in many medical and research publications to activate stem cells proliferation and promote new hair growth [and] these reports are footnoted on our website”.

14. The advertiser asked that the “complain-tee makes him/herself, identifiable to us or revoke his/her complaint” and that “shall the complain-tee wish to make him/herself identifiable than we are more than willing to address his concerns directly”.

15. The advertiser did not provide any evidence in relation to the particulars of the complaint.


Findings of the Panel


16. The Panel noted that the response provided by the advertiser was extremely limited, and could at best be regarded as providing some evidence of product safety. No material provided by the advertiser offered any support for the claims of product efficacy, and no evidence was provided that the product worked in the way it was stated to work.

17. 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 preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury in persons, or influencing, inhibiting, or modifying a physiological process in persons.

18. The advertised product was clearly represented in the advertisements to be for therapeutic use, such as use in stimulating stem cell proliferation, activating stem cells in the scalp, promoting new hair growth, increasing blood circulation, supporting cellular health and function, enhancing the thickness, health, and vitality of hair follicles, and changing the colour of hairs back to their original colour by a physiological means. The Panel was therefore satisfied that the advertised product fell within the definition of therapeutic goods found in the Act, and that the advertisements were advertisements for therapeutic goods for the purposes of the complaint.

19. 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 Hair Active product is not included in the Register, and that therefore any of the representations noted above caused the material to breach section 42DL(1)(g). The Panel therefore found this aspect of the complaint justified.

20. 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”.

21. In the absence of any evidence from the advertiser that the Hair Active product could have any of the benefits or effects described in the advertisements, or that it was clinically tested or trialled to have such effects, the Panel was satisfied that the advertisements breached these sections of the Code. These aspects of the complaint were therefore justified.

22. 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.” In the absence of any evidence from the advertiser that the Hair Active product could have any of the benefits or effects described in the advertisements, the Panel was satisfied that the advertisements breached this section of the Code. This aspect of the complaint was therefore justified.

23. Section 4(2)(i) of the Code prohibits representations that the goods advertised are safe, harmless, or free of side-effects. The Panel noted that the website advertisement represented the advertised product to be “100% safe” without qualification. This aspect of the complaint was therefore justified.


Sanctions


24. The Panel requests Hair Active Pty Ltd, 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 is a hair regrowth formula, stimulates or activates stem cells or has any effect on stem cells, contains stem cell technology, promotes hair growth or new hair growth, is safe, increases blood circulation, changes the colour of hair by physiological means, supports cellular health or function, enhances the thickness, health, or vitality of follicles, improves the condition of the scalp, or otherwise has any therapeutic benefits or effects;

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 27 February 2012

For the Panel

 

Jason Korke

Chairman




Appendix A:    Definitions and footnotes


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). It should be noted that HTML metatags and other information which can be retrieved by internet search engines, whether or not it is ordinarily viewed directly by consumers, constitutes advertisement material.

 

 

 

 

*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.




Appendix B:     Excerpt of the Advertisement


 

 

 

 
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