Complaints Resolution Panel
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  Thursday 24 July 2014
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Date of Meeting: 02/02/12
Code: 2011/10/024
Product: Mistica Slimming Ultrasonic Contour Body Massager
Complainant: Requested anonymity
Respondent: Mistica
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)(g), 4(2)(h), 4(2)(i), 4(7) and 7(3)
Sections Found Not Justified: None
Action: Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-10-024 Mistica Ultrasonic Contour Device, Ultrasonic Beauty Skin Device and Silk Collagen Mask

Meeting held 2 February 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


Mistica


Subject matter of complaint


Website advertisement


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)(g), 4(2)(h), 4(2)(i), 4(7) and 7(3)


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 internet advertising published on the website www.mistica.com.au

2.      The advertising at www.mistica.com.au spanned many pages and included multiple representations for therapeutic use, such as “the revolutionary Ultrasonic Contour Device specifically targets fat cells and cellulite, melting them away never to be seen again." And “Ultrasonic Contour technology uses biocavitational ultrasound waves and radiofrequency energy to selectively break down fat cells and cellulite without affecting neighboring (sic) structures.”, “These ultrasonic waves penetrate into the deeper layers of your skin and improve the elasticity of skin cells thus functioning as a natural face lift.” and “ natural nutrients effectively promote collagen production and strengthen cell adhesion, making skin more resilient.”

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

The product(s)

4.      The advertisements promoted the Slimming Ultrasonic Contour Body Massager, the Ultrasonic Skin Beauty Device” and the Silk Collagen Mask. The complaint primarily was about the Slimming Ultrasonic Contour Body Massager.

The advertiser(s)

5.      The advertiser was Mistica.

The complaint

6.      The complainant was anonymous.

7.      The complainant alleged that the advertisements breached section 42DL(1)(g) of the Act and sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(g), 4(2)(h), 4(2)(i), 4(7) and 7(3) of the Code.

The advertiser’s response to the complaint

8.      The advertiser argued that all of the information in the website is based on information that had been provided by the manufacturer of the good and addressed the concerns raised by the complainant by saying that wording in the advertisement describes the technology behind the device, technological fact and operation principle.

9.      The advertiser did not provide any evidence at all in support of the claims made for the product.

Findings of the Panel

10. 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.

11. The advertised product was clearly represented in the advertisement to be for therapeutic use as defined in the Act and included statements relating to producing results that were clearly connected with therapeutic use as defined in the Act. Moreover, the product was stated to have modes of action that clearly constituted therapeutic use.

12. Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. None of the advertised products were included in the Register and thus constituted a breach of section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

13. 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”.

14. The advertiser was asked by the Panel to “provide pivotal evidence to support the efficacy of the product with respect to the claims subject to complaint”, and did not do so.

15. The Panel noted, moreover, that the representations about the effects of the advertised product were such that evidence would be required in order for such claims to be used in advertising to consumers. On the basis of the material before it, the Panel was satisfied that the advertisements contained many representations that had not been verified, were likely to arouse unwarranted expectations, and were misleading in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code.

16. These included the claims:

a)      “the revolutionary Ultrasonic Contour Device specifically targets fat cells and cellulite, melting them away never to be seen again."; and “Ultrasonic Contour technology uses biocavitational ultrasound waves and radiofrequency energy to selectively break down fat cells and cellulite without affecting neighboring (sic) structures.”

b)      “These ultrasonic waves penetrate into the deeper layers of your skin and improve the elasticity of skin cells thus functioning as a natural face lift.”; and

c)      “ Natural nutrients effectively promote collagen production and strengthen cell adhesion, making skin more resilient.”

17. These aspects of the complaint were therefore justified.

18. 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(2)(g) of the Code states that advertisements must not contain any claim, statement or implication that it is infallible, unfailing, magical, miraculous, or that it is a certain, guaranteed or sure cure and section 4(2)(h) that advertisements must not contain any claim, statement or implication that it is effective in all cases of a condition. The Panel was of the view that, taken as a whole, the advertising on this website did breach these sections of the Code and so these aspects of the complaint were found justified.

19. Section 4(2)(i) of the Code, which prohibits representations that the goods advertised are safe, harmless, or free of side-effects, was found to have been breached by the inclusion of the statement “Safe and easy slimming massage.....” and so this aspect of the complaint was found justified.

20. Section 4(7) of the Code requires that testimonials included in advertisements for therapeutic goods “must be documented, genuine, not misleading and illustrate typical cases only.” The advertiser provided no evidence that the testimonials by way of “before and after” photos in the advertisement were documented, genuine, typical, and not misleading. This aspect of the complaint was therefore found to be justified.

21. Section 7(3) of the Code requires that advertisements making weight management claims must have an appropriate balance between those claims and references to healthy energy-controlled diet and physical activity. This section defines “weight management” to include weight loss, measurement reduction, clothing size loss and weight control/maintenance. The advertisements clearly fell within the scope of section 7(3). The Panel did not consider that they conveyed the required balance, and therefore found this aspect of the complaint to be justified.

22. The Panel noted, without making any formal finding, the advertisement was likely to breach section 5(2) of the Code by referring to serious disease or conditions, such as heart disease.

Sanctions

23. The Panel requests Mistica, 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 products are safe, or that they are for any therapeutic use, as described above.

c)      to withdraw any representations that:

i)        “the revolutionary Ultrasonic Contour Device specifically targets fat cells and cellulite, melting them away never to be seen again."; and “Ultrasonic Contour technology uses biocavitational ultrasound waves and radiofrequency energy to selectively break down fat cells and cellulite without affecting neighboring (sic) structures.”;

ii)      “These ultrasonic waves penetrate into the deeper layers of your skin and improve the elasticity of skin cells thus functioning as a natural face lift.”;

iii)    “ Natural nutrients effectively promote collagen production and strengthen cell adhesion, making skin more resilient.”; and

iv)    The product is safe

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

25. 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;

26. 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.

27. 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 8 June 2012

For the Panel

 

Jason Korke

Chairman



Appendix A  Definitions and footnotes

In this determination, unless otherwise specified:

“the Act” means the Therapeutic Goods Act 1989;

“the Regulations” means the Therapeutic Goods Regulations 1990;

“the Code” means the Therapeutic Goods Advertising Code;

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

“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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