Complaints Resolution Panel
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  Wednesday 16 April 2014
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Date of Meeting: 05/04/12
Code: 2012/01/001
Product: Island Tribe Sunscreens
Complainant: Requested anonymity
Respondent: OC Imports Pty Ltd
Finding: Justified
Sections Found Justified: Act section 42C; Code sections 4(2)(a), 4(2)(c), 4(5), 4(6), 6
Sections Found Not Justified: None
Action: Withdraw advertisement; withdraw representations
Panel Determination:
COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2012-01-001 Island Tribe Sunscreens

Meeting held 5 April 2012

 








































Complaint summary^


Complainant


Requested anonymity


Advertiser


OC Imports Pty Ltd


Publisher


Jetstar Airways Pty Ltd


Subject matter of complaint


Website and print advertisements


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)(c), 4(5), 4(6), 6


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.islandtribe.com.au and a print advertisement published in the December 2011 edition of Jetstar magazine.

2.      The website advertisement covered several pages and included representations such as “our products are researched and developed by leading sunscreen laboratories in South Africa and Australia”, “our products are recognised by CANSA as protection against the harmful effects of the sun”, “the gel is highly imperious [sic] to water so when applied lasts longer than conventional sun lotions”, and other claims.

3.      The print advertisement was headed “our way is CLEARLY different” and included representations such as “one of Australia’s highest SPF protectant sunscreens (59.4 AFTER 4 hours in the water)”, “nano particle and PABA free”, “unique NON ALCOHOL based, broad spectrum CLEAR Gel formula”, “4 hours water and sweat resistant”, and a number of other claims.

4.      Excerpts of the advertisements can be viewed in the relevant Appendix to this determination.


The product(s)


5.      The advertisement promoted a range of Island Tribe sunscreens.


The advertiser(s)


6.      The advertiser was OC Imports Pty Ltd.


The publisher(s)


7.      The publisher of the print advertisement was Jetstar Airways Pty Ltd.


The complaint


8.      The complainant requested anonymity.

9.      In relation to the print advertisement, the complainant alleged breaches of section 42C of the Act. The complainant also alleged that the words “one of Australia’s highest SPF protectant sunscreens (59.4 AFTER 4 hours in the water)” breached section 4(2)(c) of the Code.

10. In relation to the website advertisement, the complainant alleged that:

a)       the words “the gel is highly imperious [sic] to water so when applied lasts longer than conventional sun lotions” breached sections 4(2)(a) and 4(5) of the Code;

b)      the words “our products are researched and developed by leading sunscreen laboratories in South Africa and Australia” breached section 4(2)(c) of the Code; and,

c)      the words “our products are recognised by CANSA as protection against the harmful effects of the sun” breached section 4(6)(c) of the Code.

11. The complainant alleged that both of the advertisements breached section 6 of the Code because they lacked certain mandatory information.



 


The advertiser’s response to the complaint


12. The advertiser, OC Imports Pty Ltd, acknowledged that the print advertisement had breached section 42C of the Act because it lacked an approval number.

13. The advertiser acknowledged that the website advertisement breached section 4(2)(a) of the Code because of the claim that the advertised product range “lasts longer than conventional sun lotions”.

14. The advertiser argued that the words “one of Australia’s highest SPF protectant sunscreens (59.4 AFTER 4 hours in the water)” did not breach the Code (but, apparently in error, referred to section 4(2)(a) of the Code which was not alleged to have been breached by these words), arguing that the actual SPF of the advertised products was clearly shown in the advertisement, as “SPF 30+” could be read on the product images and elsewhere in the advertisement. They argued that “the reference to an SPF of 59.4 would not, in the context of multiple references to Island Tribe being rated SPF 30+, of itself, mislead consumers to believe that Island Tribe is more effective than other SPF 30+ sunscreens – since the disparity demonstrates the impact of the Australian Standards in relation to labelling.” The advertiser provided some evidence to support the reference to an SPF of 59.4.

15. In relation to the words “researched and developed by leading sunscreen laboratories in South Africa and Australia”, the advertiser stated that “Island Tribe is made in Australia” and argued that “manufacture in Australia of Island Tribe is sufficient to satisfy” a requirement to support the claim.

16. In relation to the reference to CANSA, the advertiser acknowledged a breach of section 4(6)(c) of the Code.

17. In relation to the alleged breaches of section 6 of the Code, the advertiser acknowledged the breaches in the case of the print advertisement, and stated that they “reserve[d] the right to respond” in relation to the website advertisement “in more detail if and when further particularization has been provided”.


The publisher’s response to the complaint^


18. Jetstar Airways Pty Ltd did not provide a response to the complaint.


Findings of the Panel


19. Section 42C of the Act makes it an offence to publish certain advertisements for therapeutic goods in specified media that does not have an approval number, or to publish an advertisement without its approval number, and through reference to the Regulations, applies to “advertisements for designated therapeutic goods published or inserted, or intended to be published or inserted, for valuable consideration, in specified media.”

20. The Panel was satisfied that the print advertisement had been published in breach of this provision. The Panel was satisfied that this breach was the responsibility of both the advertiser and the publisher. This aspect of the complaint was therefore justified.

“the gel is highly imperious [sic] to water so when applied lasts longer than conventional sun lotions”

21. The Panel took the word “imperious” to be an erroneous rendition of the word “impervious.”

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

23. The Panel was satisfied that the words “the gel is highly imper[v]ious to water so when applied lasts longer than conventional sun lotions” constituted a comparison with other sunscreen products. In the absence of any evidence supporting such a comparison, the Panel was satisfied that it was misleading and aroused unwarranted expectations in relation to the advertised product. These aspects of the complaint were therefore justified.

“one of Australia’s highest SPF protectant sunscreens (59.4 AFTER 4 hours in the water)”

24. Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”.

25. The advertiser provided evidence to support the claim of an SPF of 59.4. However, the evidence provided appeared to the Panel to relate to one of the three advertised products. It was not clear to the Panel that the evidence could appropriately be applied to all three of the products.

26. In any case, the Panel was satisfied that the reference to an SPF of 59.4 was misleading because the correct rating of the advertised products, pursuant to the relevant Australian Standard, was “SPF 30+”. The Panel noted that the preface to the relevant Standard (AS/NZS 2604:1998) states that “a limit of SPF 30+ was agreed to as a compromise between the consumer’s right to know the SPF and the decreasing accuracy in measuring SPF in the higher SPF ranges”, and that “the change [to a maximum allowable claim of SPF 30+] was made after careful consideration by the Committee of all of the issues involved.”

27. The Panel noted that the complainant had made reference to this Standard, and that the advertiser had responded by arguing that the Standard “addresses requirements for testing and labelling of sunscreens, but does not… address advertising of sunscreens.” The Panel did not consider it necessary to establish whether or not the Standard directly addressed advertising. Rather, the Panel was satisfied that in establishing a maximum permissible label claim of SPF 30+, the Standard caused a claim of an SPF higher than “SPF 30+” to be misleading to consumers seeking to make an informed choice of an SPF 30+ sunscreen. This was particularly so in a context where extensive education of consumers about sunscreens had been undertaken by health agencies to set out the importance of choosing a broad spectrum, SPF 30+ sunscreen.

28. The reference to an SPF of 59.4 was therefore misleading, and this aspect of the complaint was justified.

 “our products are researched and developed by leading sunscreen laboratories in South Africa and Australia”

29. The Panel was satisfied that the words “our products are researched and developed by leading sunscreen laboratories in South Africa and Australia” would convey to an ordinary and reasonable consumer that the advertised products had been the subject of a non-trivial degree of research and development by leading sunscreen laboratories in Australia.

30. In relation to this aspect of the complaint, the advertiser stated that “Island Tribe is made in Australia” and argued that “manufacture in Australia of Island Tribe is sufficient to satisfy” a requirement to support the claim. The Panel did not accept this argument of the advertiser. The Panel found that, in order to support the claim “our products are researched and developed by leading sunscreen laboratories in South Africa and Australia”, the advertiser ought to have provided evidence that research and development of the products had been conducted in Australia. The advertiser provided no such evidence. The Panel was therefore satisfied that the words were misleading in breach of section 4(2)(c) of the Code, as alleged by the complainant. This aspect of the complaint was therefore justified.

references to CANSA

31. Section 4(6)(c) of the Code prohibits advertisements for therapeutic goods that “contain or imply endorsement of the goods by bodies or peak healthcare professional associations that...(i) represent the interests of health consumers [or] (ii) conduct or fund research into a disease, condition disorder or syndrome”, unless certain conditions are met. These conditions include requirements that:

a)      “the endorsement is authenticated”;

b)      “the nature of the endorsement is clearly disclosed”; and,

c)      “the endorsement is based upon an objective assessment of available scientific data supporting the use of that product”. The provision further states that “where this is not the case and where the body or association has received valuable consideration for the endorsement, the advertisement must acknowledge that consideration.”

32. The advertiser acknowledged that the reference to CANSA, the Cancer Association of South Africa, did not comply with this provision. The Panel agreed. This aspect of the complaint was therefore justified.

mandatory inclusions

33. The print advertisement ought to have included an approval number (section 6(4) of the Code), the words “always read the label” (section 6(3)(c) of the Code), and the words “use only as directed” (section 6(3)(d) of the Code). The advertisement did not include an approval number or these mandatory statements. These aspects of the complaint (as acknowledged by the advertiser) were therefore justified.

34. In relation to the website advertisement, the advertiser did not provide a substantive response to this aspect of the complaint, but rather stated that they “reserve[d] the right to respond” in relation to the website advertisement “in more detail if and when further particularization has been provided”. The Panel did not agree with the advertiser that this aspect of the complaint had not been adequately made out. The requirements of section 6 of the Code are specific and were clearly raised by reference to the provision, and the advertiser ought to have provided evidence that the relevant inclusions were present in the website advertisement.

35. In relation to internet advertisements, the relevant mandatory information includes “a full list of the active ingredients” and “any mandatory advisory statements required to be included on the product label, prominently displayed on each page”, as well as the mandatory warning statement “use only as directed” on each page in which the advertised goods appeared.

36. None of the pages of the website advertisement that were before the Panel appeared to include the mandatory information. This aspect of the complaint was therefore justified.


Sanctions


37. The Panel requests OC Imports Pty Ltd and Jetstar Airways Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the print advertisement from further publication; and,

b)      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.

38. The Panel requests OC Imports Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:

a)      to withdraw the website advertisement from further publication;

b)      to withdraw any representations that the advertised products have an SPF rating higher than SPF 30+, that they last longer than other sunscreens, or that they have been the subject of research and development in Australia, together with the representations conveyed by the references to CANSA;

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

d)     where the representations have 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.

39. The attention of the parties 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 22 June 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.

 

^Readers of the determination should note that the sections “complaint summary”, “the advertisement(s)”, “the complaint”, and “[a party]’s response to the complaint”, are summaries that are intended to aid readers of this document. In reaching its decision, the Panel considered all of the material before it, including material that may not be mentioned specifically in the summaries. The summaries do not form part of the Panel’s reasoning.

*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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