At the request of a number of different parties, the Panel has decided to publish excerpts of significant decisions. These excerpts are intended to aid advertisers and consumers in understanding the Code and other relevant regulatory requirements. Ultimately, decisions of the Panel are made on a case-by-case basis. For this reason, the excerpts cannot be relied upon by parties to predict the outcome of complaints.
This section of the website will be updated from time to time.
The use of the words "clinically proven" should be carefully considered
18 August 2008
The Panel is concerned at the growing use of the words "clinically proven" in advertisements for therapeutic goods, when these words are not supported by an adequate and appropriate body of evidence that relates to the specific product (and not merely to a similar product or ingredient) to which the advertisement relates. In complaint 2008-02-005, the Panel noted as follows:
The Panel also noted the use of the words “clinically proven” in relation to the product. Given the strength of this claim and the clear potential for it to mislead and deceive consumers, the Panel considers that its use in advertising should not even be contemplated unless unequivocally supported by robustly designed, published, peer-reviewed clinical trials which have been conducted upon the actual product being advertised or an identical formulation (as a minimum). Even where such evidence is available, the claim must also reflect the weight of all available evidence and not just the specific research being relied upon.
A related point has been made in recent determinations regarding undue emphasis on the weight of scientific evidence in relation to products. For example, in 16-0907, the Panel stated:
When advertisers of therapeutic goods make representations regarding the efficacy of those therapeutic goods, they must ensure that the strength of the evidence is reflected in the strength of the representations. Where evidence is very strong, strong claims may be justified. Where the evidence is of modest quality (but nonetheless supports claims of product efficacy), advertisers must take care not to overstate the quality and nature of the evidence when making claims about the product. To do otherwise is likely to mislead the public and breach sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code.
Information on retailer websites is the responsibility of the website publisher
18 August 2008
Publishers of websites should be aware that they are responsible for the material they publish, regardless of whether they have copied that material from product packaging or other websites. Some online retailers appear to be of the view that it is acceptable to duplicate information from such sources for the purposes of advertising products for sale, but take no responsibility for the publication of the information. In complaint 4-0707, an online retailer and advertiser argued that they had "absolutely no way of knowing whether [the product sponsor is] in fact justified in what they say about " the advertised product, and explained that "text on our website is originally all copied from the respective manufacturer’s websites and other publicity they provide when the product is launched". In its determionation the Panel noted as follows:
12. In the view of the Panel, it is an extraordinary proposition that a publisher of a commercial website could publish information regarding therapeutic goods that are for sale by means of that website, and disavow any responsibility for the accuracy of that information, or publish information when by their own acknowledgment they have "absolutely no way of knowing whether [the product sponsor is] in fact justified in what they say" about the advertised therapeutic goods.
13. Where an advertiser publishes information regarding a product in an advertisement, it is a prima facie presumption that the advertiser is the person responsible for publishing that information even where it has been copied from material published by the product sponsor. Material that has been compiled from sources such as product packaging or other material may not be current, may not have been provided with the intention that it be reproduced in advertising by others, or may in some other way be deficient. Such material may have been reproduced without the consent, control, or authorisation of the product sponsor.
14. If, therefore, the product sponsor or some other party is to be considered responsible for the information contained in the advertisement, rather than the advertiser, it would (at a minimum) be necessary for the advertiser to provide documentary evidence that the information was provided to the advertiser expressly for the purpose of advertising the product. This is not to say that retailers must hold evidence in the same way that product sponsors must. It is simply to say that if a retailer is in the business of advertising and selling therapeutic goods, it is not unreasonable to expect that retailer to take on the responsibility, at a minimum, of instituting a process whereby the accuracy of advertising claims is explicitly warranted by the product sponsor, and this warranty is documented.
Claims that a product is "TGA approved" are not permitted
18 August 2008
In complaint 2008-02-018, the Panel noted as follows:
Section 4(6)(b) of the Code prohibits representations that goods are endorsed by government bodies. While in one sense the words "Listed with the Therapeutic Goods Administration as a herbal medicine" may constitute an attempt to indicate compliance with the Act, they are likely to convey an implication that the goods so listed are approved by an Australian government agency to a degree that is not factually correct, particularly as regards the efficacy of the product. The complaint was therefore justified. However, for the advertiser's benefit, the Panel noted that s.42DL(1)(e)(i) of the Act, whilst prohibiting "a reference to the Act", does permit a statement to the effect that "Product X is listed in the ARTG, AUST L 123". The Panel also noted that such a statement makes no reference to any government agency.