COMPLAINTS RESOLUTION PANEL DETERMINATION
Complaint 2011-11-016 Contours Face and Body Clinic
Meeting held 1 March 2012
Contours Face and Body Clinic
Subject matter of complaint
Type of determination
Sections of the Code, Regulations or Act found to have been breached*
Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(g), 4(2)(h), 7(3)
Sections of the Code, Regulations or Act found not to have been breached*
Code section 4(4), 4(5)
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
1. The complaint concerned an internet advertisement published at the website www.contoursfaceandbodyclinic.com.au.
2. The advertisement included representations about “liposuction free fat reduction” such as “many of us have body issues that make us unhappy... we have the natural Liposuction Free and surgery free answers to these concerns”, “if you have fatty deposits that are hard to shift no matter how many sit ups, gym workouts and diets, if your clothes are too tight, and nothing fits then the answer is to break up fatty deposits and to stimulate the body to remove the fat naturally in record time”, “the natural and painless alternative for cellulite control and immediate inch loss anywhere on the body”, “the results we can achieve are similar to liposuction without the pain, discomfort and potentially life threatening complications”, “Biosculpt’s ability to break down fat using natural, surgery free principles and to remove cellulite has been proven by Medical MRI scans”, “the treatment stimulates the extra cellular matrix or the fluid substance just under the skin, to treat the first stage of cellulite, which is stagnation, and the second stage which is cellulitis”, “reducing cellulite and fatty build up on the face and body”, “inch loss results are immediate”, “a series of 5 sessions generally over a two week period gives lasting slimming results”, “fat removal, cellulite management, inch loss, toning and firming, toxicity, fluid retention, jet lag, and much more!”, “effortless firming and toning”, “loose flabby buttocks, thighs, tummy, arms or legs or any area of skin that needs toning and firming: the answer is electrical stimulation to contract the muscles”, “45 minutes is like 5 hours at the gym”, “designed to reduce fat deposits, the Contours Medilift treatments can also tone and firm th body”, “Medilift also assists with... fat removal, cellulite management, toning and firming, and inch loss”, “burn fat faster – 600 calories in 30 minutes”, “sluggish metabolism, and lack of circulation”, “Dermal Matrix Therapy Radio Frequency (RF) and Cavitation Ultrasound”, “Radio Frequency Skin Tightening and Cavitation Fat Dissolving”, “this NEW and REVOLUTIONARY treatment... has been proven to increase collagen, dissolve fat, and tighten the skin”, and a great many other strong claims.
3. It also included testimonial material containing claims such as “the whole thing was pain free and I have lost 10 cm around my waist after only 5 sessions”, “my legs are visibly smoother and smaller, resulting in going down one and a half dress sizes!”, “ and “the treatments give noticeable results”, and “before and after” images.
4. An excerpt of the advertisement can be viewed in the relevant Appendix to this determination.
5. The advertisement promoted a Medilift device and a Biomesosculpture device.
6. The advertiser was Contours Face and Body Clinic.
7. The complainant requested anonymity.
8. The complainant alleged that the advertisement breached sections 4(1)(b), 4(2)(a), 4(2)(c), 4(4), 4(5), 4(2)(g), 4(2)(h), and 7(3) of the Code.
The advertiser’s response to the complaint^
9. The advertiser stated that they had been advised by the manufacturer of the Biomesoscuplture machine and the Medilift device “that this equipment does not require TGA approval, as it is classified as ‘wellness equipment’ meaning that it creates a feeling of wellbeing”. The advertiser stated that their website “does no more than repeat the material that can be found on the manufacturers’ website.”
10. The advertiser also provided copies of testimonials from clients supporting the claims made in 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 Panel noted the argument of the advertiser that “this equipment does not require TGA approval, as it is classified as ‘wellness equipment’ meaning that it creates a feeling of wellbeing”. The Panel noted that such an argument could only be of relevance if the advertised devices were represented only to be for use in “creating a feeling of wellbeing”, and not for any therapeutic use. If the advertised devices were represented to be for any therapeutic use (as defined in the Act), then they would fall within the definition of therapeutic goods, and the advertisement would be an advertisement for therapeutic goods.
13. The Panel was satisfied that the advertised devices were represented to be for therapeutic use, and that indeed the claims of therapeutic use were extremely strong and unequivocal. The Panel was therefore satisfied that the advertisement was an advertisement promoting therapeutic goods.
14. The Panel noted, therefore, that the advertisement appeared likely to breach section 42DL(1)(g) of the Act. However, as the complainant did not raise this issue, the Panel did not make any formal finding on this point.
15. 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”.
16. The Panel noted that the evidence provided by the advertiser – hyperlinks to website advertisements published by other parties, and testimonial material from clients – was not of a type, volume, or quality that could reasonably be advanced in support of claims made in advertising to consumers.
17. The Panel was satisfied that the advertisement contained many representations that had not been verified, were not balanced and correct, 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.
18. These included the representations that the advertised products were for any therapeutic use or for any use other than creating a feeling of wellbeing, that they could effect fat reduction, act in a way comparable to liposuction or surgery, aid in the removal of fatty deposits (including fatty deposits that were unresponsive to diet or exercise), reduce clothing size or body measurements, aid in relation to cellulite, break down fat, remove cellulite, “stimulate the extra cellular matrix or the fluid substance just under the skin”, offer lasting slimming results, tone or firm the body, aid in relation to toxicity, fluid retention, or jet lag, , reduce fat deposits, cause fat burning, aid metabolism and circulation, increase collagen, dissolve fat, or tighten the skin. It also included representations that the advertised had been “proven by Medical MRI scans” or that “45 minutes [of use of the products] is like 5 hours at the gym”.
19. The aspects of the complaint were therefore justified.
20. Section 4(2)(g) of the Code prohibits representations that therapeutic goods are “infallible, unfailing, magical, miraculous”, or that they are “a certain, guaranteed or sure cure”. 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”.
21. The Panel was satisfied that the advertisement, taken as a whole, represented the advertised products to be unfailing and to be effective in all cases of cellulite and stubborn fat deposits. The Panel noted that the advertisement explicitly stated that the advertised products would be effective in cases where diet and exercise had proven ineffective, and that obtaining benefits from the products was “effortless”. The Panel was satisfied that the advertisement breached sections 4(2)(g) and 4(2)(h) of the Code. This aspect of the complaint was therefore justified.
22. Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”, and requires that publication of scientific research results should “identify the researcher and financial sponsor of the research.” The Panel did not consider that the statements in the advertisements amounted to scientific information or scientific research results, since the words used merely made reference to a general body of evidence, and did not cite quantitative or detailed data, nor any specific trial or research, and did not use words that would require scientific training on the part of readers. The Panel therefore considered that this aspect of the complaint was not justified
23. 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.” Although the advertisement did contain comparisons with therapies such as liposuction, the Panel did not find that the advertisement contained comparisons with other therapeutic goods that would bring it within the scope of this provision. The Panel therefore found this aspect of the complaint not to be justified.
24. 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.
25. The advertisement clearly fell within the ambit of section 7(3). The Panel did not consider that the material conveyed the required balance, and indeed noted that it implied that the use of the advertised products was preferable to diet and exercise and was likely to be effective when diet and exercise had not been. The Panel therefore found this aspect of the complaint to be justified.
26. The Panel requests Contours Face and Body Clinic, 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 for any therapeutic use or for any use other than creating a feeling of wellbeing, that they can effect fat reduction, act in a way comparable to liposuction or surgery, aid in the removal of fatty deposits (including fatty deposits that were unresponsive to diet or exercise), reduce clothing size or body measurements, aid in relation to cellulite, break down fat, remove cellulite, “stimulate the extra cellular matrix or the fluid substance just under the skin”, offer lasting slimming results, tone or firm the body, aid in relation to toxicity, fluid retention, or jet lag, reduce fat deposits, cause fat burning, aid metabolism and circulation, increase collagen, dissolve fat, or tighten the skin, together with any representations that they have been “proven by Medical MRI scans” or that “45 minutes [of use of the products] is like 5 hours at the gym”;
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.
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
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