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Date of Meeting: 19/01/12
Code: 2011/08/013
Product: Quit Nits
Complainant: Requested anonymity
Respondent: Wild Child (WA) Pty Ltd
Finding: Justified
Sections Found Justified: Act sections 22(5), 42DL(1)(g); Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(h), 4(4), 4(5), 6(3)
Sections Found Not Justified: None
Action: Publication of retraction, Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-08-013 Quit Nits

Meeting held 19 January 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


Wild Child (WA) Pty Ltd


Subject matter of complaint


Website advertisement


Type of determination


Final


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


Act sections 22(5), 42DL(1)(g)

Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(h), 4(4), 4(5), 6(3)


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


None


Sanctions

 


Withdrawal of representations

Withdrawal of advertisement

Publication of a retraction


 

 

 

 

 

 

 

 


* 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.quitnits.com.au.

2.      The advertisement covered several pages of the website.

3.      In relation to a Quit Nits Rapid product, it included claims such as “works in just 10 minutes”, “kills lice and eggs”, “no chemical pesticides”, and “clinically proven to kill head lice”.  

4.      In relation to a Quit Nits One Head Lice Treatment product, it included claims such as “simple to use yet highly effective head lice treatment which kills lice and eggs with one treatment”, “99% effective”, “clinically proven”, “no chemical pesticides”, and “kills lice and eggs with one application... will leave the hair soft and lice free”.

5.      In relation to a Quit Nits Combing Solution product, it included claims such as “the Nit Buster”, “suitable for head lice detection and treatment”, “clinically proven to kill head lice”, “contain... no chemical pesticides”, and “formulated for easy head lice detection or for people who prefer the wet combing method as recommended by most state government health authorities”.

6.      In relation to a Quit Nits Defence Spray product, it included words such as “pleasantly fragranced and non-greasy daily weapon against head lice infestation”, “daily defence against head lice”, “no chemical pesticides”, “pesticide free”, and “offers 8 hours natural head lice defence with an easy spray on application”.

7.      In relation to a Quit Nits Complete Head Lice Kit, it included claims such as “a complete head lice control system”, and “clinically proven to kill head lice and their eggs with the One treatment and prevent reinfestation with the everyday Defence Spray”.

8.      The advertisement also stated that some competing products “contain high levels of solvents such as cyclomethicone which can dramatically increase the flammability of hair. Ref: BBC News UK England, Dorset Hair oil b[o]y sets himself alight”.

9.      In relation to the Quit Nits range collectively, the advertisement included words such as, “[the founder of the company] was horrified to find that the leading treatments contained chemicals that looked like they belonged in a garden centre rather than on her daughter’s head”, “concerned with their exposure to pesticides, she started researching an alternative way to rid her children of head lice”, “her early investigations led to the discovery of a new natural compound, now a key ingredient in her company’s lice product line”, “made with natural active ingredients originating in the Australian outback”, “contain no chemical pesticides”, “Quit Nits head lice treatments are born in nature, based in science”, “unlike pesticide-based treatments such as pyrethroids and malathion, there is no demonstrated resistance of head lice to Quit Nits”, and “64% of parents are bothered by the fact that many head lice treatments on the market contain chemical pesticides.”

10. In relation to “head lice treatments” generally, the advertisement included words such as “physical methods include combing with a nit comb.... [such methods] have increased in popularity due both to a reluctance to expose children to chemicals, and to a perceived lack of efficacy of the existing chemical methods of treatment.” It referred to research indicating that parents preferred products that “contain[ed] no toxic chemicals” and were “recommended by a medical professional”, and that “these factors have featured strongly in the ongoing innovation of the Quit Nits range to address these consumer attitudes.” The advertisement also included the words, “remember that some head lice treatments contain aggressive chemicals that may be the cause [of] itching” and “this is a good reason to screen but not a good reason to treat, especially with chemical pesticide based products.”

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


The product(s)


12. The advertisement promoted the products Quit Nits Rapid, Quit Nits One Head Lice Treatment, Quit Nits Combing Solution, Quit Nits Defence Spray, and Quit Nits Complete Head Lice Kit.


The advertiser(s)


13. The advertiser was Wild Child (WA) Pty Ptd.


The complaint


14. The complainant requested anonymity.

15. The complainant alleged that the advertisement breached sections 4(2)(a), 4(2)(d), 4(2)(h), 4(4), and 6(3) of the Code, citing specific passages in the advertisement as the cause of these breaches. The complainant also stated that they had experienced difficulty in determining the regulatory status of some of the advertised products.

16. The complainant also expressed concern about the use of the claim “clinically proven to kill head lice” in relation to the Quit Nits Rapid product, noting that a product of Aust L 121663 was Listed in the Register and that claims that this product was indicated only for “control[ling] and remov[ing] head lice”, not “kill[ing] head lice”. The Panel interpreted this aspect of the complaint as alleging a possible breach of section 22(5) of the Act.


Further enquiries by the Panel


17. Under subregulation 42ZCAE(1) of the Therapeutic Goods Regulations 1990, the Panel is empowered to seek information in relation to complaints in order to make appropriate determinations.

18. After receiving the initial response of the advertiser, the Panel gave preliminary consideration to the complaint and, like the complainant, experienced some difficulty in determining the regulatory status of some of the advertised products. The Panel therefore asked the advertiser to provide additional information in the following terms:

The Panel requests that you provide clear information as to the regulatory status of all of the products in the advertisement, at the time of the complaint, including the Quit Nits One product, Quit Nits Rapid product, Quit Nits Head Lice Defence Spray, Quit Nits Combing Solution, and Quit Nits Complete Head Lice Kit, as well as “the entire line of Quit Nits natural lice treatments” mentioned in the website advertisement. The Panel seeks information as to whether, and in what category, each of these products was included in the Register, and the dates for which such inclusion was valid. The Panel requests also requests that you provide this information in relation to the Quit Nits Rapid product that you have stated is “no longer produced”.


Additional matters raised by the Panel


19. 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 section 42DL(1)(g) of the Act because some of the products advertised may not be included in the Register;

 

b)      Possible breaches of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code because of representations that the advertised products work by “smothering” or suffocating head lice. The Panel requested evidence as to the mode of action of the products;

 

c)      Possible breaches of section 4(2)(c) of the Act because references to Quit Nits Rapid in the advertisement could mislead consumers who encounter “some stocks of the old product in the marketplace”. The Panel noted that the advertiser’s response to the complaint acknowledged that the products “have a similar name”;

 

d)     Possible breaches of section 4(5) of the Code, because of references to toxic chemicals, chemical pesticides, aggressive chemicals, “a perceived lack of efficacy of the existing chemical methods of treatment”, consumers being “horrified” about chemical ingredients, “exposure to pesticides”, “non-flammable” ingredients (and, by implication, flammable ingredients); and,

 

e)      Possible breaches of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code because of representations about the advertised products being “clinically proven”, and the representation that “there is no demonstrated resistance to Quit Nits”. The Panel advised the advertiser that it had formed a view that the claim “there is no demonstrated resistance” may in practice amount to a claim that there is no resistance.


The advertiser’s response to the complaint


20. In relation to the regulatory status of the advertised products, the advertiser stated that the Rapid Head Lice Lotion product “is an included therapeutic device not the medicine referred to as Aust L 121663” and that “although the products have a similar name they have distinctly different packaging and Quit Nits Rapid Aust L 12663 is no longer produced.” The advertiser stated that “Quit Nits Rapid AUSTL 121663 is still listed as a medicine because there are some stocks of the old product in the marketplace.”

21. The advertiser stated that Quit Nits Combing Solution was a “cosmetic product... intended to assist the removal of head lice from the hair by providing lubrication to the hair shaft”. The advertiser stated that the words “clinically proven to kill head lice” had been included with this product in error and that the words “as recommended” were meant to have been included. The advertiser argued that “the term ‘treatment’ is often used to encompass the process of applying conditioner and wet combing with a nit comb”.

22. The advertiser stated that Quit Nits Combing Solution and Quit Nits Defence Spray were “not therapeutic goods because: the products do not contain recognised therapeutically active ingredients; the products do not make therapeutic claims; [and] the products make general cosmetic claims only ie conditions and detangles.”

23. The advertiser stated that Quit Nits One, Quit Nits Complete Kit, and a Quit Nits Comb were all therapeutic goods – specifically, devices included in the Register.

24. The advertiser provided a document signed by their CEO, Leanne Preston, stating, “I hereby declare that the head lice product named ‘Quit Nits Advance’ tested in the clinical study entitled ‘Study of the Effectiveness and Tolerance of Quit Nits Advance after the Topical Administration to 100 Children with Pediculosis” conducted in January 2010 and the in vitro trial entitled ‘Report of tests to establish the efficacy of one formulation (Wild Child) against adult lice and their eggs with a 40 minute, 2 hour, and overnight exposure’ is precisely the same formula as ‘Quit Nits One’ which is currently marketed in Australia.”

25. The advertiser provided a similar document stating, “I hereby declare that the head lice product named ‘Head Lice Treatment (Rapid)’ nominated in the study entitled ‘A Randomised, Assessor Blinded "Proof of Concept" (Phase lIa) Clinical Study to Assess the Efficacy of a Herbal Based Cream for use in the Treatment of Head Lice’ is precisely the same formulation as marketed in Australia under the name of ‘Quit Nits Rapid’”.

26. In relation to the alleged breach of section 6(3)(c) of the Code, the advertiser stated that “each relevant page of the web site includes a statement to the effect ‘Always follow the directions’ [and] in our opinion the statement is directly equivalent to ‘always read the label’ since it is not possible to follow the directions without reading the label.” The advertiser argued that therapeutic devices are not required to display active ingredients and that they were therefore “unable to comply with 3(c)(i)”.

27. In relation to the mode of action of the advertised products, the advertiser stated that “both Quit Nits One and Quit Nits rapid are based on a cationic emulsion containing 5% dimethicone and no other recognised insecticide”. The advertiser referred the Panel to research material generally supportive of a description of the mode of action of this ingredient as “suffocation”.

28. The advertiser stated that “since the products are devices they cannot contain chemical actives that are toxic to the insect” and that the claims “no chemical pesticides” and “pesticide free” were therefore acceptable.

29. The advertiser acknowledged that the words “horrified” and “belong in a garden centre” could breach section 4(2)(d) and stated that they had been removed from the advertisement.

30. The advertiser provided a copy of a study that was said to support claims about “the eradication of head lice by suffocation” in relation to the Rapid Head Lice Lotion “device”. The advertiser also provided copies of other studies in their response to the complaint.

31. In support of the “99% effective” claim the advertiser relied primarily on one study involving human subjects but also referred the Panel to a supportive in vitro study.

32.  In relation to the words “there is no demonstrated resistance to Quit Nits”, the advertiser stated that it was “fair and not misleading in that Wild Child Pty Ltd has had no reports of continuous treatment failure”.


Findings of the Panel


33. Section 1(3) of the Code states that the Code should be interpreted with an emphasis on the object and the principles of the Code, and the total presentation and context of the advertisement. Section 3(2) of the Code states that the conformity of an advertisement with this Code should be assessed in terms of its probable impact upon the reasonable person to whom the advertisement is directed. In assessing the advertisement, the Panel was mindful not only of the particular words cited by the complainant, but of the entire context of the advertisement and its likely impact on a reasonable consumer.

the regulatory status of the products

34. 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.

35. It was clear from the submission of the advertiser that the products Quit Nits One, Quit Nits Rapid, and Quit Nits Complete Kit were therapeutic goods included in the Register in the category of devices.

36. The Panel was also satisfied that the Quit Nits Combing Solution and Quit Nits Defence Spray products were presented as being for therapeutic use. Quit Nits Combing Solution was stated in the advertisement to be “clinically proven to kill head lice”, and to be “suitable for head lice detection and treatment.” Quit Nits Defence Spray was represented to be a “daily weapon against head lice infestation” and a “daily defence against head lice”, and to offer “8 hours natural head lice defence with an easy spray on application”. In the Panel’s view these representations brought the products within the definition of therapeutic goods found in the Act. The Panel also noted that the advertisement referred to the Quit Nits range collectively as “the entire line of Quit Nits natural lice treatments”.

37. Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. Since neither the Combing Solution nor the Defence Spray product are included in the Register, the advertisement breached section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

The two “Rapid” products

38. Two products with similar (if not identical) names were to be found in the Register at the time of the advertisement. One was a Listed medicine, Quit Nits Rapid (Aust L 121663), the other an included device, Quit Nits Rapid (ARTG 170532).

39. 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”.

40. Section 22(5) of the Act states that sponsors of therapeutic goods “must not, by any means, advertise the goods for an indication other than those accepted in relation to the inclusion of the goods in the Register”.

41. The Panel was satisfied that a reasonable consumer viewing the advertisement could equally interpret the advertisement as relating to the Listed medicine product as to the device product. Although the Panel accepted that the Listed medicine product was probably not commonly available in the marketplace, it was not clear that the advertiser had taken active steps to ensure that it had been removed from the marketplace or to ensure that consumers would not confuse the two products, such as by giving the newer product a distinct and different name. The Panel was therefore satisfied that the part of the advertisement promoting the Quit Nits Rapid product could be taken to promote the Aust L 121663 product, and that in doing so it caused the advertisement to breach sections 4(2)(a) and 4(2)(c) of the Code, and section 22(5) of the Act.

42. These aspects of the complaint were therefore justified.

43. As a related matter, the Panel noted with some concern that the advertiser (like the complainant and the Panel) appeared to have experienced some confusion in relation to the Quit Nits Rapid products. The advertiser provided the Panel with a document signed by “Leanne Preston CEO”, stating “I hereby declare that the head lice product named ‘Head Lice Treatment (Rapid)’ nominated in the study entitled ‘A Randomised, Assessor Blinded "Proof of Concept" (Phase lIa) Clinical Study to Assess the Efficacy of a Herbal Based Cream for use in the Treatment of Head Lice’ is precisely the same formulation as marketed in Australia under the name of ‘Quit Nits Rapid’.”

44. The study in question referred to the Rapid product as being “olive oil based and contain[ing] Australian sandalwood oil (Santalum spicatum) and other essential oil extracts.” It appeared to the Panel that the study therefore related to the discontinued Listed medicine product, and not to the device product currently in production. It therefore appeared to the Panel that this study was not relevant to the present complaint, and reinforced the Panel’s concern that the two products could easily be confused.

“clinically proven to kill head lice” in relation to the Combing Solution product

45. Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”.

46. The complainant alleged that the advertisement breached this section of the Code by stating that the Combing Solution product was “clinically proven to kill head lice” in a “roundel” superimposed on a product image. The advertiser stated that this claim had been included in error and that the advertisement was instead intended to say “as recommended”.

47. The Panel accepted that the claim had been included in error, but noted that the complaint had to be determined on the basis of the material before it. It was clear that the advertisement had indeed stated that the Combing Solution product was clinically proven to kill head lice, and that this claim was unsubstantiated. The Panel was therefore satisfied that the advertisement breached section 4(2)(a) of the Code by including the claim. This aspect of the complaint was therefore justified.

“No toxic chemicals”, “chemical pesticides”, “aggressive chemicals”, “chemical pesticide based products”, “horrified”, “lack of efficacy of existing chemical methods”, and similar claims

48. 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.” Section 4(5) of the Code requires that comparisons made in advertisements must be balanced and must not be misleading or likely to be misleading, and prohibits the inclusion in advertisements of comparisons that “imply that the therapeutic goods, or classes of therapeutic goods, with which comparison is made, are harmful or ineffectual.”

49. The Panel was satisfied that the overwhelming message conveyed by the advertisement, through emphasis on words such as those noted, was that the advertised products were “natural”, free of chemicals, free of pesticides, or free of chemical pesticides, while competing products were likely to contain pesticides, toxic chemicals, or aggressive chemicals that could cause itching or other unstated side effects.

50. The Panel noted that the advertisement represented the advertised products to be “born in nature” and to be “unlike pesticide-based treatments such as pyrethroids and malathion”. The advertiser stated, in response to the complaint, that “both Quit Nits One and Quit Nits rapid are based on a cationic emulsion containing 5% dimethicone and no other recognised insecticide”. The Panel noted that a reasonable and ordinary consumer was unlikely to find “a cationic emulsion containing 5% dimethicone” to be particularly “natural”.

51. The Panel was satisfied that the emphasis on chemicals and pesticides in the advertisement, including the emphasis conveyed by references to surveys about consumer concerns, conveyed a clear impression that the advertised product was more natural than competing products and that competing products could be ineffectual or harmful. The Panel was also satisfied that the advertisement could cause fear or distress in consumers in relation to other head lice products. The advertisement therefore breached sections 4(2)(d) and 4(5) of the Code, and these aspects of the complaint were justified.

52. The Panel was also satisfied that the claim that the product contained “no pesticides” or “no chemical pesticides” was misleading and breached sections 4(2)(d) 4(5) of the Code. It was clear that the advertised Quit Nits Rapid, Quit Nits One, and Quit Nits Complete kits were pesticides, and the advertiser described them in response to the complaint as “containing 5% dimethicone and no other recognised insecticide”. While the Panel accepted that there is a distinction to be made between products that work by physically “suffocating” head lice and those that work by way of toxicity, the distinction was not accurately conveyed in the advertisement and is not accurately conveyed by reference to the “pesticide” or “chemical” properties of the products. The advertised product clearly contains chemicals and is a pesticide, and its active ingredient is not “natural”.

53. The Panel was also satisfied that, particularly in the context of the contrast being drawn between the advertised products and competing products (including products that were said to arouse consumer “concerns” about chemicals and pesticides), the claims that the advertised products were “natural” or “born in nature”, together with implied claims that they were more natural than most or all competing products, misled and abused the trust of consumers in breach of sections 4(2)(d) and 4(5) of the Code.

54. These aspects of the complaint were therefore justified.

“non-flammable”

55. The Panel found that, in themselves, the words “non flammable” were probably acceptable provided that they accurately described the advertised product. However, the inclusion of the headline, “Hair oil b[o]y sets himself alight”, and the link to a BBC news article on this subject, was likely to cause consumers to believe that setting hair alight was a likely risk when using head lice products other than the advertised products. The Panel was satisfied that this part of the advertisement therefore breached sections 4(2)(d) and 4(5) of the Code. These aspects of the complaint were justified.

“will leave hair soft and lice free”

56. Section 4(2)(h) of the Code prohibits advertisements for therapeutic goods that “contain any claim, statement or implication that it is effective in all cases of a condition”.

57. The Panel was satisfied that the representation that the Quit Nits One product “will leave hair soft and lice free” conveyed that the product would in all cases of lice infestation leave hair soft and lice free, in breach of section 4(2)(h) of the Code.

58. This aspect of the complaint was therefore justified.

“99% effective”, “clinically proven”, “kills lice and eggs with one application”

59. The complainant alleged that these words breached section 4(4) of the Code. Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”. The Panel also raised with the advertiser the possibility that the “clinically proven” claim breached sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code.

60. The Panel noted that the claim of 99 percent effectiveness was supported by evidence provided by the advertiser, but that the evidence was primarily a single open, uncontrolled study involving 100 subjects. The Panel was satisfied that the evidence, while not without any merit, was not of an appropriate type or scope to support strong claims in advertising such as those made in the advertisement. The Panel was therefore satisfied that the claims caused the advertisement to breach sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(4) of the Code. This aspect of the complaint was therefore justified.

61. As an additional matter, the Panel noted that the material on which the advertiser relied in relation to the killing of head lice clearly indicated that head lice needed to be exposed to the active ingredient for some time. It stated that “at 40 minutes exposure this formulation has little effect on lice [and] resulted in 0% mortality”, that mortality rose to 73.7 percent at two hours, and that overnight exposure resulted in 100 percent mortality. Given that the Rapid product was stated to be for use in only a 10-minute period, the Panel was satisfied that the claim that the Rapid product “kills” lice was not accurate and was misleading. In the case of the Quit Nits One product, the application time supported claims that the product could “kill” lice. The Panel was therefore satisfied that the claim that the Rapid product “kills head lice” breached sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(4) of the Code whether or not it was accompanied by references to clinical proof or 99 percent effectiveness.

“there is no demonstrated resistance to Quit Nits”

62. The advertiser argued that this representation was “fair and not misleading in that Wild Child Pty Ltd has had no reports of continuous treatment failure”.

63. The Panel was satisfied that a reasonable consumer reading the advertisement would conclude, because of these words, that there is no resistance in head lice to the advertised products. In the Panel’s view, the claim of “no demonstrated resistance” would need to be supported by positive evidence, and not merely a lack of contrary evidence. The Panel was satisfied that this claim was therefore unverified and misleading, in breach of sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(4) of the Code. This aspect of the complaint was therefore justified.

the products’ mode of action

64. The Panel raised with the advertiser the concern that the representations that the products work by “smothering” or “suffocating” head lice could breach sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code.

65. The advertiser provided evidence to the Panel that the advertised products worked by disrupting the ability of the lice to exchange moisture with their environment or “disrupting their ability to manage water”. On balance, the Panel was satisfied that the words “smothering” or “suffocating” could reasonably be used to convey this effect to consumers.

66. This aspect of the complaint was therefore not justified in relation to the use of words such as “smother” or “suffocate”.

67. The Panel noted that the advertiser had stated that they had “not been able to locate the mention of ‘suffocation’ or ‘smothering’” on the website or product packaging. The Panel acknowledged that the word “suffocation” did not appear to be present in the advertisement, but that the word “smother” did appear in the material promoting the Rapid product.

mandatory statements

68. The complainant alleged that the advertisement breached section 6(3) of the Code, because the advertisement did not include “a full list of ingredients”.

69. The advertiser argued that, because the advertised products were included in the Register as devices, they did not need to include a list of active ingredients, and that “each relevant page of the web site includes a statement to the effect ‘Always follow the directions’ [and] in our opinion the statement is directly equivalent to ‘always read the label’ since it is not possible to follow the directions without reading the label.”

70. Section 6(3)(c) of the Code provides that an advertisement for therapeutic goods must, “in the case of direct marketing and Internet marketing”, contain “a full list of the active ingredients” and “the mandatory warning statements prominently displayed on each page of the catalogue or internet that features therapeutic goods”.

71. Section 6(3)(c) contains no exception in relation to goods that are included in the Register as devices, although it is obvious that in the case of many devices there will in fact be no active ingredients to list. In the case of the Quit Nits One, Quit Nits Rapid, and Quit Nits Complete products, there is (as the advertiser stated in response to the complaint), an active ingredient: dimethicone. The advertisement therefore ought to have stated that the products contained this active ingredient where the products were mentioned.

72. This aspect of the complaint was therefore justified.

73. The Panel did not agree with the advertiser that the words “always follow the directions” were equivalent to the words “always read the label”. However, the Panel was satisfied that they conveyed essentially the same meaning as “use only as directed” and that the advertisement therefore appeared to comply with section 6(3)(d) of the Code.

 


Sanctions


74. The Panel requests Wild Child (WA) 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 express or implied representations that:

i)        the Quit Nits Combing Solution or Quit Nits Defence Spray products are for any therapeutic use, including use in killing head lice, head lice treatment, or preventing or defending against head lice infestation;

ii)      the Quit Nits Rapid product kills head lice or eggs or is clinically proven to do so;

iii)    the Quit Nits One product is clinically proven to kill head lice or eggs, is 99 percent effective, or will invariably leave hair lice-free;

iv)    there is no resistance or demonstrated resistance in head lice or eggs to the advertised products;

v)      Quit Nits products whose active ingredient is dimethicone are “born in nature”, natural, free of chemicals, pesticides, or chemical pesticides, “made with natural active ingredients originating in the Australian outback”, or based on “the discovery of a new natural compound, now a key ingredient in the company’s lice product line”;

vi)    competing products contain aggressive chemicals or toxic chemicals, or may be harmful or more harmful than the advertised products, or that there is reason to believe that this may be the case, or that the advertised products are “unlike pesticide-based treatments such as pyrethroids and malathion”;

together with the representation conveyed by the news headline about a boy setting his hair alight, or the hyperlink to the associated news article;

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;

e)      to arrange for publication on the website www.quitnits.com.au of a retraction advertisement in the form of, and in accordance with, the conditions set out in the attachment to this determination; and,

f)       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.

75. 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, including a recommendation that the inclusion of the goods on the Register be cancelled.

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:     Corrective statement


 

A retraction advertisement is to appear on the website www.quitnits.com.au at the earliest opportunity.

 

A copy of the retraction advertisement, and the page on which it will be published, is to be provided to the Complaints Resolution Panel for approval before publication.

 



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