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Complaints Register
| Date: |
15/02/07 |
| Code: |
4-1106 |
| Product: |
Xantrax |
| Complainant: |
Dr Ken Harvey |
| Respondent: |
Cat Media Pty Ltd |
| Nature of the Complaint: |
Code sections 4(2)(a), 4(2)(b), 4(2)(c), 4(2)(f) |
| Finding: |
Justified 4(2)(a), 4(2)(c) Not justified 4(2)(b), 4(2)(f) |
| Action: |
Withdraw advertisement; withdraw representation |
| Panel Determination: |
COMPLAINTS RESOLUTION PANEL DETERMINATION
Complaint 4-1106 Xantrax
Meeting held 15 February 2007
Complaint summary
Complainant Dr Ken Harvey
Respondent Cat Media Pty Ltd
Publisher News Limited
Subject matter of complaint Print advertisement
Type of determination Final
Aspects of complaint found to be justified Code sections 4(2)(a), 4(2)(c)
Aspects of complaint found not to be justified Code sections 4(2)(b), 4(2)(f)
Sanctions
Withdrawal of advertisement
Withdrawal of representations
The advertisement(s)
1. The complaint concerned a print advertisement published in the 1 November 2006 edition of the Daily Telegraph newspaper, together with some internet advertisements.
2. The newspaper advertisement was headed Australian Doctor Recommends New Weight loss pill and made claims of benefits and effects such as support healthy metabolism , lift energy , contains potent botanical extracts that are traditionally used as a stimulant and may assist during times of fatigue to support general vitality and performance.
3. The advertisement also included photographic images of a Dr Staraj and a product pack.
4. The website advertisements varied, but contained similar information as far as the complaint is concerned.
5. An excerpt of the advertisements can be viewed in the relevant Appendix to this determination.
The product(s)
6. The advertisement promoted Xantrax Weight Loss Formula.
The advertiser(s)
7. The advertiser was Cat Media Pty Ltd, together with several website publishers, namely the publishers of yourchemistshop.com.au, discountnaturalhealth.com, thexton.com.au, and pharmacyonline.com.au. Responsibility for the website advertisements was disputed.
The publisher(s)
8. The publisher of the print advertisement was News Limited.
The complaint
9. The complainant was Dr Ken Harvey.
10. The complainant alleged that the advertisements were in breach of sections 4(2)(a), 4(2)(b), 4(2)(c), and 4(2)(f) of the Code.
11. The complainant noted the following aspects of the advertisements:
a) The use of the words new weight loss pill in the headline;
b) References to suppressing the appetite ;
c) References to helping to fight fatigue ;
d) References to assisting with the bodys response to stress ;
e) References to delaying gastric emptying thus prolonging a sense of fullness ;
f) References to maintaining healthy energy levels ;
g) References to improving exercise performance ;
h) References to supporting healthy metabolism.
12. The complainant also cited some research material relating to various ingredients included in the product, primarily in the form of website URLs and brief summaries of the website content.
The advertisers response to the complaint
13. After making an initial review of the complaint, the Panel resolved to contact the website proprietors as well as Cat Media Pty Ltd, in an effort to ascertain who was responsible for the publication of the website material. Although responses varied, they may be summarised as stating that the website material was based on material provided by Cat Media to its wholesale account customers.
14. In relation to the websites, Cat Media argued that it had no control over their contents, but acknowledged responsibility for the newspaper advertisement.
15. Cat Media argued that some of the references cited by the complainant, such as www.worstpills.org, clearly represent a vested interest and should not be given regard by the Panel.
16. Cat Media stated that it could see no basis for the allegation that the advertisement breached sections 4(2)(b) and 4(2)(f) of the Code.
17. Cat Media also requested that the Panel refer to material it had provided in relation to a recent, previous complaint (18-0806), and the Panel agreed to do so. This material consisted of a wide range of research material which was claimed to support the representations made in the advertisements.
Findings of the Panel
18. The Panel noted that the words cited by the complainant were all found in the print advertisement, and that they were, with some variation, largely reproduced in the website advertisements. In view of the conflicting responses received from the website publishers and Cat Media as to the website material, the Panel did not make a determination as to whether responsibility for the content of the website advertisements lay with Cat Media or the website publishers. The Panel noted however that it was not disputed that Cat Media was responsible for the print advertisement. The Panel also noted that the only material provided to support the claims made in the advertisement was provided by Cat Media, and not by the website publishers.
19. 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 .
20. The Panel considered each of the claims cited by the complainant in turn, and, on the basis of all the material before it, concluded as follows:
a) The words weight loss pill used in the headline of the print advertisement and in some of the website advertisements were not adequately supported by the evidence provided by the advertiser. The Panel noted that, at best, a small proportion of the material provided suggested that some product ingredients had potential in weight loss, and merited further research, but that the majority of the material provided disclosed no weight loss effects whatever;
b) The claim of appetite suppression was not adequately supported by the evidence provided by the advertiser;
c) The claim that the product could help fight fatigue , assist with stress, maintain healthy energy levels, and improve exercise performance was supported by the evidence provided by the sponsor;
d) The claim that the product could support healthy metabolism was not adequately supported by the evidence provided. The Panel noted that it had found, in relation to complaint 18-0806, that the words supports metabolic rate were adequately supported by the same evidence. However, the Panel did not consider that supporting metabolic rate had the same meaning as supporting healthy metabolism ; and,
e) The claim delays gastric emptying was not adequately supported. Although there was some evidence provided which related to appetite suppression, it was not persuasive, and in any case provided no support at all for a contention relating to gastric emptying.
21. The Panel therefore found that the advertisement was in breach of sections 4(2)(a) and 4(2)(c) of the Code, since the claims regarding weight loss, appetite suppression, healthy metabolism, and delaying gastric emptying were misleading and likely to arouse unwarranted and unrealistic expectations of product effectiveness. These aspects of the complaint were therefore justified.
22. Section 4(2)(b) of the Code prohibits advertisements that are likely to lead to consumers self-diagnosing or inappropriately treating potentially serious diseases. The Panel did not find words in the advertisement that could be considered to breach this section of the Code. The Panel therefore found that this aspect of the complaint was not justified.
23. Section 4(2)(f) of the Code prohibits representations that encourage inappropriate or excessive use of therapeutic goods. While the Panel found that some of the claims made in relation to the product were not adequately supported by the evidence provided, the Panel accepted that there was adequate evidence for some of the claimed benefits. The Panel therefore concluded that the advertisement did not encourage inappropriate or excessive use of the product. This aspect of the complaint was therefore not justified.
Sanctions
24. The Panel requests Cat Media Pty Ltd and the publishers of the websites www.yourchemistshop.com.au, www.discountnaturalhealth.com, www.thexton.com.au, and www.pharmacyonline.com.au, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:
a) to withdraw the print and website advertisements from further publication;
b) to withdraw any representations that Xantrax causes weight loss, suppresses the appetite, delays gastric emptying, or supports healthy metabolism;
c) not to use the representations in (b) above in any other advertisement unless the advertisers satisfy 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; and,
d) within 14 days of being notified of this request, to provide evidence to the Panel of their compliance, such as copies of instructions to advertising agents or publishers.
25. The advertisers 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.
26. The Panel also requests that Cat Media advise its wholesale account customers that they should withdraw the representations noted above from their advertising, including website advertising.
Dated 17 April 2007
For the Panel
Jason Korke
Chairman
Appendix A: Definitions
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).
Appendix B: Excerpt of the advertisement
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