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  Tuesday 29 July 2014
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Date of Meeting: 05/04/12
Code: 2011/12/020
Product: Instant Virgin
Complainant: Requested anonymity
Respondent: Coast PC Pty Ltd
Finding: Justified
Sections Found Justified: Act section 42DL(1)(g); Code sections 4(1)(a), 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(f), 4(2)(g), 4(2)(h), 4(2)(i), 4(7), 6(3)
Sections Found Not Justified: Code section 4(4)
Action: Publication of retraction, Withdraw advertisement; withdraw representations
Panel Determination:
 

COMPLAINTS RESOLUTION PANEL DETERMINATION

Complaint 2011-12-020 Instant Virgin

Meeting held 5 April 2012

 




































Complaint summary


Complainant


Requested anonymity


Advertiser


Coast PC Pty Ltd


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)(a), 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(f), 4(2)(g), 4(2)(h), 4(2)(i), 4(7), 6(3)


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


Code section 4(4)


Sanctions

 


Publication of retraction

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.instantvirgin.com.au.

2.      The advertisement included representations such as “fast vagina tightening is now available online”, “Instant Virgin is the natural spray that works in just 5 minutes before sex to rejuvenate your vagina back to a tighter energized state, allowing you to climax faster and more frequently helping you enjoy making love again”, “using Instant Virgin daily can fully rejuvenate your vagina without the need for more application”, “further benefits include: dispel unpleasant odour; restore the vagina suppleness; reduce excessive mucus; increase vaginal secretion; restore lubrication and solve the problem of vaginal dryness; firm and tighten your vagina and get more pleasure and comfort”, “FACT: Climax More Often With Instant Virgin Spray!”, “your body will appreciate the orgasms it has missed out on and your partner will most definitely enjoy that fresh tight feeling again”, “Instant Virgin Spray is an all natural herbal formula that carries no adverse side effects”, and many other claims. It included testimonials making statements such as “I thought it was simply amazing how much more tighter I got. I’ve used Instant Virgin about 5 times now and it works without fail everytime so it's definitely reliable and well worth the money I spent, thanks heaps”, “I know sex is going to be extreme if I spray on Instant Virgin”, and many 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 the product Instant Virgin.


The advertiser(s)


5.      The advertiser was Coast PC Pty Ltd.


The complaint^


6.      The complainant requested anonymity.

7.      The complainant alleged that the advertisement breached section 42DL(1)(g) of the Act and sections 4(1)(a), 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(f), 4(2)(g), 4(2)(h), 4(2)(i), 4(4), 4(7), and 6(3) of the Code.


The advertiser’s response to the complaint^


8.      The advertiser did not provide a response to the complaint.


Findings of the Panel


9.      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.

10. The advertisement clearly represented the advertised product to be for therapeutic use, including use in tightening or rejuvenating the vagina, deodorising the vagina, “restoring suppleness” to the vagina, reducing mucus, increasing vaginal secretion, restoring vaginal lubrication and “solv[ing] the problem of vaginal dryness”, and others.

11. Section 42DL(1)(g) of the Act prohibits the publication of advertisements for therapeutic goods that are not included in the Register. The advertised product is 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.

12. 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”.

13. In the absence of any submission from the advertiser, the Panel was satisfied that the advertisement contained many representations that had not been verified, were not correct and balanced, 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. These included the representations that the advertised product was for any therapeutic use, or that it could offer benefits connected with tightening or rejuvenating the vagina, deodorising the vagina, “restoring suppleness” to the vagina, reducing mucus, increasing vaginal secretion, restoring vaginal lubrication, “solv[ing] the problem of vaginal dryness”, increasing enjoyment of sex, or increasing the frequency of orgasm.

14. These aspects of the complaint were therefore justified.

15. 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.” The Panel was satisfied that, because of the misleading representations noted above, the advertisements abused the trust and exploited the lack of knowledge of consumers. This aspect of the complaint was therefore justified.

16. Section 4(2)(f) of the Code prohibits representations that “encourage inappropriate or excessive use” of therapeutic goods. Given that the representations about product efficacy were misleading, the Panel was satisfied that the advertisement did encourage inappropriate or excessive use of the product. This aspect of the complaint was therefore justified.

17. 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”. The Panel was satisfied that, taken as a whole, the advertisement would clearly convey to an ordinary and reasonable consumer that the advertised spray product was unfailing and would be effective in all cases. These aspects of the complaint were therefore justified.

18. Section 4(2)(i) of the Code prohibits representations that the goods advertised are safe, harmless, or free of side-effects. The advertisement stated that the advertised product was “an all natural herbal formula that carries no adverse side effect”, and also implied that the product was safe without qualification. This aspect of the complaint was therefore justified.

19. 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. As the material did not contain ‘scientific information’ per se, the Panel found this aspect of the complaint not 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.” In the absence of any evidence from the advertiser, the Panel was satisfied that the testimonials in the advertisement were misleading insofar as they reported product benefits that were not substantiated by evidence. Moreover the Panel was not satisfied that the testimonials in the advertisement were documented and genuine. This aspect of the complaint was therefore found to be justified.

21. The advertisement ought to have included a full list of the active ingredients of the advertised product (section 6(3)(c) of the Code), and the words “use only as directed” and “if symptoms persist see your doctor/healthcare professional” (section 6(3)(d) of the Code). The advertisement did not include this mandatory information. These aspects of the complaint were therefore justified.

22. Section 4(1)(a) of the Code requires advertisements for therapeutic goods to comply with the statute and common law of the Commonwealth, States and Territories. Because of the breaches already noted, this aspect of the complaint was justified.


Sanctions


23. The Panel requests Coast PC Pty Ltd, 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 product is for any therapeutic use, that it is safe or free of side effects, or that it has any benefits connected with tightening or rejuvenating the vagina, deodorising the vagina, “restoring suppleness” to the vagina, reducing mucus, increasing vaginal secretion, restoring vaginal lubrication, “solv[ing] the problem of vaginal dryness”, increasing enjoyment of sex, or increasing the frequency of orgasm;

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 of retractions 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.

24. 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 15 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:     Retraction


 

An advertisement is to appear on the website www.instantvirgin.com.au, and to be provided by email and post to all consumers who purchased the advertised product, at the earliest 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 Instant Virgin spray, which we published on the website www.instantvirgin.com.au, should not have been published.

 

In the advertisement we unlawfully made claims that the product could have therapeutic effects, including effects such as tightening or “rejuvenating” the vagina, increasing sexual pleasure, and preventing vaginal dryness. The advertisement also contained testimonials about product effects.

 

A complaint about the advertisement was recently upheld by the Complaints Resolution Panel. We provided no evidence that the advertised product had any benefits, or that the testimonials in the advertisement were genuine, and the Panel found that the claims were unlawful, misleading, and unverified and breached the Therapeutic Goods Advertising Code.

 

The Panel therefore requested that Coast PC Pty Ltd 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:


120 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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