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Instant Virgin Spray - Coast PC Pty Ltd - Complaint No. 2011-12-020

5 August 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 'Instant Virgin Spray'
(Complaint No. 2011-12-020)

Background

On 15 July 2013, the delegate of the Secretary of the Department of Health and Ageing (the Delegate) for the purposes of regulation 9(1) of the Therapeutic Goods Regulations 1990 (the Regulations) decided to order Coast PC Pty Ltd (the Advertiser) to carry out actions in relation to an internet advertisement at www.instantvirgin.com.au. The advertisement promoted the 'Instant Virgin Spray' product.

The decision was made by the Delegate on review of the recommendation from the Complaints Resolution Panel (the Panel) under regulation 42ZCAI(3) of the Regulations on 4 September 2012, in relation to the 'Instant Virgin Spray' advertisement, the subject of complaint No. 2011-12-020. The decision to order the Advertiser to carry out specified actions in relation to the website advertisement was taken as the Advertiser had not fully complied with the Panel's determination issued on 15 June 2012.

The Panel's findings

The Panel found that the advertisement clearly represented the 'Instant Virgin Spray' product to be for therapeutic use, and that in the absence of any submission from the Advertiser, the advertisement contained many representations that had not been verified, were not correct and balanced, were likely to arouse unwarranted expectations and were misleading. The Panel also found that the advertisement exploited the lack of knowledge of consumers, encouraged excessive use, represented the product as being side effect free and used 'consumer testimonials' which were misleading insofar as they reported product benefits that were not substantiated.

The Panel found that section 42DL(1)(g) of the Therapeutic Goods Act 1989 (the Act) and sections 4(1)(a), 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(f), 4(2)(g), 4(2)(h), 4(2)(i), 4(7) and 6(3) of the Therapeutic Goods Advertising Code 2007 (the Code) were breached in relation to the advertisement on the website. The discussion in relation to these breaches is at paragraphs 9 - 22 of the Panel's determination (Complaint No. 2011-12-020).

Code breaches

The Delegate agreed with the Panel that the advertisement at the time of the complaint was in breach of section 42DL(1)(g) of the Act and sections 4(1)(a), 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(d), 4(2)(f), 4(2)(g), 4(2)(h), 4(2)(i), 4(7) and 6(3) of the Code.

The decision

The Delegate was satisfied that the way in which the goods were presented were likely to be taken to be for 'therapeutic use' because its overall presentation fitted the definition of 'therapeutic use' in that it purported to 'influence, inhibit or modify a physiological process' by way of providing a benefit in relation to, 'tightening the vagina', 'restoring suppleness to the vagina', 'increasing vaginal secretion', 'restoring lubrication', 'solving the problem of vaginal dryness' and 'releasing esterogen' [sic] to stimulate the libido. The advertisement included the representation that the 'Instant Virgin Spray' product could 'fully rejuvenate your vagina without the need for more application', included the offer of a '100% money back guarantee' if 'for any reason you are not happy with the your order' and stated that 'Instant Virgin Spray' is an all natural herbal formula that carries no adverse side effects.

The Delegate noted that the Advertiser provided no information to verify the claims made for the advertised product nor was any qualifying information provided in relation to the testimonials made for the product. The Delegate reviewed the available information including the complaint, the internet advertisement and the Panel's determination, and in the absence of any information from the Advertiser, the Delegate concluded that Coast PC Pty Ltd had not clearly and explicitly qualified the representations made in the internet advertisement and found therefore that the advertisement:

  1. was incorrect and unbalanced and was therefore in breach of section 4(1)(b) of the Code;
  2. was likely to arouse unwarranted and unrealistic expectations of the effectiveness of the 'Instant Virgin Spray' product and was therefore in breach of section 4(2)(a) of the Code;
  3. was misleading and was therefore in breach of section 4(2)(c) of the Code;
  4. abused the trust of and exploited the lack of knowledge of consumers and was therefore in breach of section 4(2)(d) of the Code;
  5. clearly conveyed to consumers that the product was guaranteed, unfailing and that it would be effective in all cases and was therefore in breach of sections 4(2)(g) and 4(2)(h) of the Code;
  6. implied that the product was safe and was therefore in breach of section 4(2)(i) of the Code;
  7. did not carry the required mandatory warnings and advisory statements and was therefore in breach of section 6(3) of the Code; and
  8. did not comply with the statute and common law of the Commonwealth, State and Territories and was therefore in breach of section 4(1)(a) of the Code

The Delegate considered that a retraction notice, which was requested by the Panel, was not appropriate in relation to the circumstances of this particular complaint.

The order

The Delegate ordered Coast PC Pty Ltd to:

  1. withdraw the advertisement from further publication;
  2. withdraw any representations that the advertised product is for any therapeutic use, that it is safe or free of side effects, or that it has any benefits connected with tightening or rejuvenating the vagina, deodorising the vagina, 'restoring suppleness' to the vagina, reducing mucus, increasing vaginal secretion, restoring vaginal lubrication, 'solv[ing] the problem of vaginal dryness', increasing enjoyment of sex, or increasing the frequency of orgasm;
  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

In addition, the Delegate imposed the following conditions under regulation 9(2) in relation to the order:

  1. within 10 working days of being notified of this order, Coast PC Pty Ltd will provide evidence to the Delegate of compliance with this order; and
  2. within 10 working days of being notified of this order, Coast PC Pty Ltd will provide to the Delegate a written response indicating that they will continue to abide by this order.

Update

Coast PC Pty Ltd have complied fully with the regulation 9 order issued by the delegate of the Secretary and have advised the TGA that they will continue to abide by that order.