|Product:||Infinite Wellness Homeopathic Kit|
|Sections Found Justified:||Act section 42DM(1); Code sections 4(1)(a), 4(1)(b), 4(2)(a), 4(2)(b), 4(2)(c), 4(2)(d), 5|
|Sections Found Not Justified:||Code section 4(2)(j)|
|Action:||Publication of retraction, Withdraw advertisement; withdraw representations|
Findings of the Panel
9. An advertisement for therapeutic goods is defined in the Act to include “any statement, pictorial representation or design, however made, that is intended, whether directly or indirectly, to promote the use or supply of the goods.”
10. The Panel noted the argument of the advertiser that the material that was the subject of the complaint had been “intended as an article not an advertisement”. However, the Panel was satisfied that the material did in fact constitute an advertisement. The Panel noted that it made specific reference to a homeopathic preparation, Cina. Moreover, the Panel noted that the website on which the material appeared also offered for sale products including a “Homeopathic Infants and Children’s Kit”, which was stated to offer benefits in relation to worms.
11. 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”.
12. The advertiser did not provide evidence that either the Cina homeopathic preparation, or the “Homeopathic Infants and Children’s Kit” could in fact have benefits in relation to worms. The Panel was therefore satisfied that the representations about worms made in the advertisement breached sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code, and found this aspect of the complaint to be justified.
13. Section 4(2)(b) of the Code prohibits advertisements that are “likely to lead to consumers self-diagnosing or inappropriately treating potentially serious diseases”. In the view of the Panel, the advertisement, through the words and images used, was very likely to lead consumers into self-diagnosing or inappropriately treating potentially serious diseases, including not only severe cases of worm infestation, but also other conditions that could be mistaken for worm infestation. The Panel noted that the advertisement could reasonably be taken by some readers to discourage consumers from seeking accurate diagnosis of a worm infestation. This aspect of the complaint was therefore justified.
14. 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.” For the reasons already noted in relation to sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code, the Panel was also satisfied that the advertisement breached section 4(2)(d) of the Code. This aspect of the complaint was therefore justified.
15. Section 5(2) of the Code prohibits advertisements that “refer, expressly or by implication, to serious forms of diseases, conditions, ailments or defects specified in Part 2 of Appendix 6, unless prior approval is given under the Therapeutic Goods Act 1989.” The diseases and conditions specified in Part 2 of Appendix 6 of the Code include “serious forms of” a wide range of health concerns.
16. The Panel was satisfied that the references to severe worm infestations, including infestations of such severity that they could cause abscesses or appendicitis, breached section 5(2) of the Code, and this aspect of the complaint was therefore found to be justified.
17. Section 4(2)(j) of the Code prohibits, subject to certain exceptions, therapeutic goods advertisements that are directed to minors. The Panel did not find the advertisement to breach section 4(2)(j) of the Code. Although the advertisement was clearly directed to parents, and promoted products intended to be used with minors, it did not appear to the Panel to be directed to minors.
18. 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. Section 42DM(1) of the Act requires advertisements for therapeutic goods to comply with the Code. Because of the breaches already noted, these aspects of the complaint were justified.