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  Friday 31 October 2014
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Date of Meeting: 16/02/12
Code: 2011/11/001
Product: SolRX Sunscreens
Complainant: Requested anonymity
Respondent: SolRX Australia
Finding: Justified
Sections Found Justified: Act section 42C; Code sections 4(2)(a), 4(2)(d), 4(2)(f), 4(6)(b), 4(6)(c), 6(3)
Sections Found Not Justified: None
Action: Publication of retractions; withdrawal of advertisement; withdrawal of representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-11-011 SolRX Sunscreens

Meeting held 16 February 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


SolRX Australia


Subject matter of complaint


Website advertisement


Type of determination


Final


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


Act section 42C

Code sections 4(2)(a), 4(2)(d), 4(2)(f), 4(6)(b), 4(6)(c), 6(3)


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


None


Sanctions

 


Publication of retractions

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.solrx.com.au.

2.      The complaint related to three distinct elements in the advertisement: a reproduction of a page from the July 2008 edition of Fishing World magazine, a brochure that could be downloaded, and webpages describing SolRX as “the ultimate sunscreen”.

3.      The page from Fishing World magazine consisted of a testimonial that included statements such as “I burn really easily thanks to my fair skin” and “usually I applied it at least twice a day, although I’m pretty sure one application in the morning probably would’ve last[ed] all day”.

4.      The webpages included claims such as “SolRX is not just another sunscreen”, and “water and sweat removes the average water resistant sunscreen after 40 minutes of activity”, as well as testimonials. One testimonial was stated to be from the President of “Melanoma Patients Australia”; another was stated to be from “Dr Geoff Wilson”. Other testimonials included the words “it’s oil free, no fragrance and no titanium dioxide which is most important. Recent studies have linked titanium dioxide to certain cancers”, “I didn’t get any burning over a 6 hour ride in a very harsh sun”.

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


The product(s)


6.      The advertisement promoted a range of SolRX sunscreens including Waterblock 30+ 4hr Water & Sweat Resistant Sunscreen, Sport 30+ 4hr Water & Sweat Resistant Sunscreen, Spray Dry Sport 30+ 4hr Water & Sweat Resistant Sunscreen, Rubber Ducky Children’s Sunscreen 30+ 4hr Water & Sweat Resistant Sunscreen, and Lip Protection 30+ 4hr, as well as SolRX Aloe After Sun Gel.


The advertiser(s)


7.      The advertiser was SolRX Australia.


The complaint


8.      The complainant requested anonymity.

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

a)      That it could lead consumers to “believe they do not need to reapply every 2-3 hours as per the norm for sunscreens in Australia”, in breach of sections 4(2)(a) and 4(2)(f) of the Code;

b)      That it breached section 4(2)(d) of the Code because of words such as “I’m too conscious of cheap and nasty chemicals major brand companies put into their products” and “little did I know that the one supplied to us was in fact more harmful than beneficial... recent studies have linked titanium dioxide to certain cancers”;

c)      That it breached section 4(6)(b) and 4(6)(c) of the Code because of implied endorsements by a healthcare professional, “Dr Geoff Wilson”, and Melanoma Patients Australia; and,

d)     That it breached section 6(3) of the Code because it did not include certain mandatory statements.


The advertiser’s response to the complaint


10. In relation to the material from Fishing World magazine, the advertiser stated that it was “an unsolicited journalistic review done on the author and magazine’s own initiative” and that they were “under the belief that any journalistic reviews were acceptable”.

11. The advertiser stated that all testimonials would be edited to remove any words stating that other sunscreens were more harmful than good, and to address other concerns raised in the complaint.


Findings of the Panel


12. As a preliminary matter, the Panel noted that the material reproduced from Fishing World magazine was, insofar as it was reproduced as part of the website advertisement, advertising material published by SolRX Australia.

13. The Panel also noted that the testimonials contained in the advertisement were, insofar as they were reproduced as parts of the website advertisement, advertising material published by SolRX Australia.

14. Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”. Section 4(2)(f) of the Code prohibits representations that “encourage inappropriate or excessive use” of therapeutic goods.

15. There were several representations within the advertisement that conveyed that the advertised products could be relied upon without any reapplication for extended periods, such as periods of six hours or an entire day, and that it could encourage consumers to use the products for extended periods without reapplication. The Panel was satisfied that the advertisement therefore breached sections 4(2)(a) and 4(2)(f) of the Code, and this aspect of the complaint was justified.

16. 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.”

17. The Panel was satisfied that the advertisement contained representations that abused the trust and exploited the lack of knowledge of consumers, and contained language which could bring about fear or distress. These included the representations that the product could be used without reapplication for extended periods, as well as the representations that other sunscreen products or their ingredients were “linked to certain cancers” or were “more harmful than beneficial”.

18. This aspect of the complaint was therefore justified.

19. Section 4(6)(b) of the Code prohibits representations that therapeutic goods are endorsed by healthcare professionals, including persons who “are healthcare professionals by way of their representation in advertisements”. The Panel was satisfied that in referring to “Dr Geoff Wilson”, without qualifying information, the advertisement represented the advertised products to be endorsed by a healthcare professional, in breach of section 4(6)(b) of the Code.

20. Section 4(6)(b) and 4(60(c) of the Code also prohibits representations that therapeutic goods are endorsed by “bodies... that represent the interests of health consumers” unless certain other information is included. The Panel was satisfied that the reference to “Melanoma Patients Australia” contained in the advertisement breached this provision.

21. These aspects of the complaint were therefore justified.

22. Section 6(3) of the Code sets out certain mandatory statements that must be included in advertisements for therapeutic goods. It sets out special requirements for “direct marketing and Internet marketing.” The relevant provisions for the present complaint were requirements that the advertisement include (in addition to the product name and a reference to its indications for use):

a)      a full list of the active ingredients of the products;

b)      any mandatory warning statements for the goods;

c)      any mandatory advisory statements required to be included in the product label, prominently displayed on each page that features the products;

d)     words to the effect of “use only as directed”.

23. The advertisement did not appear to include these mandatory statements. This aspect of the complaint was therefore justified.

24. The Panel also noted, without making any formal finding, that the advertisement appeared likely to breach sections 4(5), 4(7), and 5 of the Code in ways that were corollary to the breaches of other provisions already noted.


Sanctions


25. The Panel requests SolRX Australia, 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 other sunscreens or their ingredients may be harmful, may be more harmful than beneficial, are linked to cancers, or may cause cancer, together with any representations implying or stating that the advertised product may be used for more than four hours without reapplication;

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.solrx.com.au of a retraction 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.

26. 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 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:     Retraction


 

An advertisement is to appear on the homepage of the website www.solrx.com.au at the earliest booking 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.

 








 

RETRACTION

 

An advertisement for SolRX sunscreen products, which we published on this website, should not have been published.

 

In the advertisement we unlawfully made claims that our sunscreen products could be effective for extended periods without needing to be reapplied. This information was not consistent with the directions for use of the products, which must be reapplied at least every four hours. We also made claims that other sunscreens and sunscreen ingredients could be “more harmful than beneficial” and were “linked to certain cancers.”

 

A complaint about the advertisement was recently upheld by the Complaints Resolution Panel. We provided no evidence to support the claims, and the Panel found that the claims were unlawful and abused the trust of consumers, in breach of the Therapeutic Goods Advertising Code.

 

The Panel therefore requested that SolRX Australia publish this retraction.

 

The full text of the Panel’s determination can be found at: www.tgacrp.com.au/complaints


 

No other copy should be included in the advertisement.

 

































Location:


website front page, so that it can be viewed without scrolling the page


Size:


No less than 500 pixels wide and 200 pixels high


Heading:

 


Arial or Helvetica

Red on a white background

The letters should be no less than 20 pixels in height, and should be no smaller than any other body text on the page

Bold


Text:


Arial or Helvetica

Red on a white background

The letters should be no less than 14 pixels in height, and should be no smaller than any other body text on the page

Bold


Text Box:


Red on a white background


Duration:


90 days


HTML


In the case of website retractions, the retraction is to be presented in ordinary and valid HTML 4 in the body of the page. Pop-ups, Flash objects, or images are not acceptable formats for website retractions.



Appendix C:    Excerpt of the Advertisement


 

 

 

 
Advertisement Copy: Download

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