|Respondent:||High Tech Health Pty Ltd|
|Sections Found Justified:||Act sections 42DL(1)(g); Code sections 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(g), 4(6)(b), 4(7), 5|
|Sections Found Not Justified:||Code sections 4(8)|
|Action:||Publication of retraction, Withdraw advertisement; withdraw representations|
Findings of the Panel
31. The Panel therefore found that the advertisement was in breach of sections 4(1)(b), 4(2)(a) and 4(2)(c) of the Code, because of the many claims made that were inconsistent with the intended purpose of the product. This aspect of the complaint was justified.
34. Section 4(6)(b) of the Code prohibits representations that therapeutic goods are endorsed by healthcare professionals. The Panel found that the advertisement represented the advertised product to be endorsed by healthcare professionals through the references to named doctors who were said to use the product and to whom positive statements about the product had been attributed. This aspect of the complaint was therefore justified.
43. 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”.
51. 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.
52. The Panel noted that the advertisement included references to the following conditions which were considered to be serious forms of diseases, conditions, ailments or defects in breach of section 5(2): “trigger point pain”, “muscular soft tissue overuse syndrome” and “ligament strains”. This aspect of the complaint was therefore justified.