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  Wednesday 22 October 2014
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Date of Meeting: 16/02/12
Code: 2011/11/002
Product: White Orchid Detox Foot Patches
Complainant: Dr Ken Harvey
Sections Found Justified: Act section 42DL(1)(g); Code sections 4(1)(b), 4(2)(a), 4(2)(c)
Sections Found Not Justified: None
Action: Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-11-002 White Orchid Detox Foot Pads

Meeting held 16 February 2012

 




































Complaint summary


Complainant


Dr Ken Harvey


Advertiser(s)


Deals.com.au


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)


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.deals.com.au.

2.      The advertisement was headed “Today’s Deal” and included claims such as “detox and feel amazing”, “simply stick them on your feet at night to draw out toxins, stop unhealthy cravings, relieve muscle aches, and wake up with a more radiant complexion and feeling supercharged”, “revitalise and cleanse your body naturally while you sleep”, “just stick them to the bottom of your feet at night and be amazed at what the pads have drawn out by the morning”, “Free yourself of health-repressing toxins and destructive pollutants and feel the benefits of a healthier, happier body”, “the pads work to naturally draw and eliminate unwanted toxins from your body while you sleep”, “the powerful detox product, assists in the alleviation of minor pain in the body, the natural cleansing of the lymphatic system, stop unhealthy cravings, improve digestion, breathing and mobility, support blood circulation, reduce swelling, improve quality of sleep and promote vibrant health and wellness”, and 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 White Orchid Detox Foot Pads.


The advertiser(s)


5.      The advertiser was Deals.com.au.


The complaint


6.      The complainant was Dr Ken Harvey.

7.      The complainant referred the Panel to the outcome of a prior determination, which he argued involved a similar advertisement and in which he stated the Panel had found breaches of section 42DL(1)(g) of the Act and section 4(2)(a) of the Code. The Panel did not consider it necessary to examine the previous complaint to which the complainant referred.

8.      On the basis of the words used by the complainant, the Panel interpreted the present complaint as alleging breaches of section 42DL(1)(g) of the Act and sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code.


The advertiser’s response to the complaint


9.      Deals.com.au did not provide a response to the complaint.


Findings of the Panel


10. Under regulation 42ZCAA of the Regulations, the person apparently responsible for an advertisement is the person who, based on the particulars of a complaint and the assessment of the Panel, appears to be responsible for requesting the publication of the advertisement. The Panel formed a view, on the basis of the material before it, that White Orchid and Deals.com.au were jointly responsible for the publication of the advertisement.

11. 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.

12. The advertised goods were clearly represented as being for a number of therapeutic uses, including pain relief and the elimination of toxins from the body.

13. Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. The advertised goods are not included in the Register, and the advertisement therefore breached section 42DL(1)(g) of the Act. The Panel therefore found this aspect of the complaint justified.

14. 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”.

15. In the absence of any evidence from the advertiser, the Panel was satisfied that the advertisement contained many representations that had not been verified, were not balanced, were likely to arouse unwarranted expectations, and were misleading in breach of these provisions. These included the claims that the advertised products were “detox pads”, or that they could have benefits such “detox” or detoxification, removal or elimination of toxins, stopping cravings, relieving muscle aches, aiding the complexion, revitalising or cleansing the body, removing “health-repressing toxins and destructive pollutants”, alleviating pain, cleansing the lymphatic system, improving digestion, breathing and mobility, supporting blood circulation, reducing swelling, and improving the quality of sleep.

16. These aspects of the complaint were therefore justified.


Sanctions


17. The Panel requests Deals.com.au, 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 “detox pads”, or that they have benefits such “detox” or detoxification, removal or elimination of toxins, stopping cravings, relieving muscle aches, aiding the complexion, revitalising or cleansing the body, removing “health-repressing toxins and destructive pollutants”, alleviating pain, cleansing the lymphatic system, improving digestion, breathing and mobility, supporting blood circulation, reducing swelling, and improving the quality of sleep, together with any other representations that they are for therapeutic use;

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.

18. 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 30 April 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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