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Amber Teething Necklaces - Eco Child - Complaint No. 2011-09-019

20 March 2013

Therapeutic Goods Act 1989
Therapeutic Goods Regulations 1990

Decision under regulation 9 of the Therapeutic Goods Regulations 1990 in relation to an advertisement about the product "Amber Teething Necklace"
(Complaint No 2011-09-019)

Background

On 10 December 2012, the delegate of the Secretary to the Department of Health and Ageing (the Delegate) for the purposes of section 9(1) of the Therapeutic Goods Regulations 1990 (the Regulations) issued an order to Eco Child in relation to an internet advertisement at www.ecochild.com.au in relation to "Amber Teething Necklaces".

The decision to issue the order was made by the Delegate after a recommendation was made to the Secretary of the Department of Health and Ageing (the Secretary) by the Complaints Resolution Panel (the Panel) under section 42ZCAI(3) of the Regulations on 23 February 2012 in relation to the "Amber Teething Necklace" advertisement referred to above, the subject of Complaint No 2011-09-019. The recommendation was made as Eco Child had not fully complied with the Panel's determination issued on 30 November 2011.

The Panel's findings

The Panel found that "Eco Child" internet advertisement breached sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(2)(d) of the Therapeutic Goods Advertising Code 2007 (the Code1 ) and section 42DL(1)(g) of the Therapeutic Goods Act 1989 (the Act). The discussion in relation to the Panel's findings may be found at paragraphs 10 - 15 of the Panel's determination which may be accessed from the Panel's Complaint Register at complaint No. 2011-09-019.

  1. Please refer to the webpage http://www.tga.gov.au/consumers/advertising-complaint-consumer-guide.htm for a summary of the advertising provisions that are commonly breached.

Code breaches

The Delegate was of the view that the "Amber Teething Necklace" internet advertisement at www.ecochild.com.au at the time of the complaint breached sections 4(1)(b), 4(2)(a), 4(2)(c), and 4(2)(d) of the Code and section 42DL(1)(g) of the Act.

Considerations

The Delegate reviewed the determination No 2011-09-019 and agreed with the Panel that the representations made implied the "Amber Teething Necklace" might have benefits in relation to teething, pain relief, inflammation, immunity or general well-being, that they were natural remedies or that they were for any therapeutic use including the representation that they were "Teething Necklaces".

Eco Child did not provide any evidence in support of the representations in the advertisement, advising that they had relied on the claims of the product manufacturer in their internet advertisement. The Delegate found that representations such as "natural analgesic" and "provide natural relief from teething problems", together with other statements made in the advertisement, would have consumers believe that the product in question could reduce inflammation caused by teething and deliver pain relief merely by being worn around the neck, thereby avoiding those complications of administering orthodox means of pain relief such as topically applied medicated gels, tablets or syrups for example. The Delegate found that such representations were likely to arouse unwarranted expectations as to the effectiveness of the advertised product as they were misleading not correct, were not balanced and remained unverified or unsubstantiated and were therefore in breach of sections 4(1)(b), 4(2)(a) and 4(2)(c) of the Code.

The Delegate also agreed with the Panel's determination and found that the representations made for the amber beads, such as a 'quality' product 'hand crafted' by 'specialists' with 'generations of experience' that can be 'worn every day' to relieve inflammation caused by teething, used language that could abuse the trust and lack of knowledge of consumers and was therefore in breach of section 4(2)(d) of the Code.

As the products were presented as therapeutic goods and are not included in the Australian Register of Therapeutic Goods (ARTG) as is required, the Delegate found that the advertisement at the time of the complaint breached section 42DL(1)(g) of the Act.

The Delegate also considered the publication of a retraction as requested by the Panel. In reaching her decision the Delegate examined all fourteen complaints about amber teething beads which had been determined by the Panel since November 2010 as well as the Australian Competition and Consumer Commission (ACCC) consumer protection notice issued to the public on 30 September 2011 that amber teething beads presented a choking hazard to children. The Delegate was of the view that there was no need to request the publication of a retraction in the form sought by the Panel as consumers could already obtain publicly available information about the hazards and possible unsupported claims made by suppliers of these products. The Delegate believed that the most important objective of a retraction is to protect public health and warn them of any public health risks arising from the supply of a particular product and that it was her view that these objectives had already been met.

Accordingly, the Delegate considered it necessary to issue the order, without a retraction, under regulation 9 of the Regulations to Eco Child requiring it to comply with all the actions set out in the order.

The order

The delegate of the Secretary ordered Eco Child to:

  1. withdraw the internet advertisement about the product "Amber Teething Necklace" found at the Eco Child website (www.ecochild.com.au);
  2. withdraw any representations, including implied representations, that the advertised product has in relation to teething, pain relief, inflammation, immunity or general wellbeing, that they are natural remedies or that they are for any therapeutic use, including the representation that they are "Teething Necklaces";
  3. not use the representations in (b) above in any other advertisement; and
  4. 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 representations should be withdrawn.

Conditions imposed on the order

Pursuant to section 9(2) of the Regulations, the order is subject to the following conditions:

  • within 10 working days of being notified of this order, Eco Child must provide evidence to the Delegate of compliance by Eco Child with the order set out in paragraphs (a) - (d) above, including, where appropriate, by providing copies of instructions to advertising agents or publishers and relevant correspondence with other third party advertisers; and
  • within 10 working days of being notified of this order, Eco Child is required to provide to the delegate a response in writing indicating that Eco will abide by the order set out in paragraph (d) of the order

Outcome

The advertisement subject of the complaint has been removed from the website at www.ecochild.com.au. Eco Child advised the delegate of the Secretary on 11 March 2013 that they will abide by the regulation 9 order and will continue to abide by the order.