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McArthur Natural Products (paw paw cream products) - Tom McArthur Pty Ltd - Complaint No. 2011-10-031(1)

29 October 2014

Administrative Appeals Tribunal update

29 October 2014

Following the decision made by a delegate of the Minister for Health on 15 July 2014, Tom McArthur Pty Ltd sought a review of that decision through the Administrative Appeals Tribunal (the Tribunal).

On the 25 September 2014, representatives of both Tom McArthur Pty Ltd and the Minister for Health reached an agreement as to the terms of a decision of the Tribunal that was acceptable to both parties.

On the 15 October 2014, the Deputy President of the Tribunal, J W Constance, set aside the decision made on the 15 July 2014 and ordered Tom McArthur Pty Ltd to post on its Facebook page in the Usage Policy, for a period of 60 days from the date of the decision, the retraction notice set out below and to pin or post to the front page of its Facebook page a post which alerts visitors to a retraction in its Usage Policy for a period of 14 days.

The retraction required to be published is as follows:

  1. Some posts which we received on this website, that the Therapeutic Goods Administration (the TGA) considered to be an advertisement concerning McArthur Natural Products, should not have remained on this website.
  2. The posts were said to include claims that the products could have therapeutic benefits, including benefits connected with skin conditions including rosacea, open wounds or infections, psoriasis, arthritic pain, eczema, 'raised veins', dermatitis, polymyalgia, diabetic neuropathy, skin cancer and others. The paw paw products cannot lawfully be promoted for any therapeutic use as these products are not listed on the Australian Register of Therapeutic Goods.
  3. A complaint about the posted claims (2011) was recently upheld by the Complaints Resolution Panel (the Panel). The Panel found that the posted claims remained on the website in breach of the Therapeutic Goods Act 1989 (Cth) and the Therapeutic Goods Advertising Code.
  4. The full text of the Panel's determination can be found at: Complaints Register.
  5. As a result of the complaint, the Panel's determination and the Panel's recommendation to the Secretary of the Department of Health that an order be issued by the TGA, we have taken numerous actions, in line with our ongoing discussions with the TGA, to withdraw the relevant posts from this Facebook page and ensure our website www.mcarthurskincare.com are compliant with the Therapeutic Goods Advertising Code. We have also taken steps to have any therapeutic claims concerning our products on third-party websites to be withdrawn.

Regulation 48 review update

22 July 2014

Following review of the initial decision made on 1 April 2014, a delegate of the Minister for Health made a decision on 15 July 2014 that was similar in substance to the initial decision. The delegate required that a retraction notice be 'pinned' to the McArthur Natural Facebook page for a period of 120 days, using the words from the initial decision but in the format required by Facebook.

Regulation 48 review

17 June 2014

The Minister for Health has received from Tom McArthur Pty Ltd, by letter dated 23 May 2014, a request for review under regulation 48 of the Therapeutic Goods Regulations 1990 in relation to the 'initial decision' by the Delegate.

McArthur Natural Products (paw paw cream products) - Tom McArthur Pty Ltd - Complaint No. 2011-10-031(1)

9 May 2014

Decision under regulation 9 of the Therapeutic Goods Regulations 1990

Tom McArthur Pty Ltd has been ordered to undertake a number of actions regarding an internet advertisement for McArthur Natural Products (paw paw cream products), including but not limited to withdrawing any representations on its Facebook page that these products have any therapeutic uses and publishing a retraction.

The McArthur Natural Products Facebook page material, including a number of related third-party posts for which Tom McArthur Pty Ltd was considered the publisher, was found to be an advertisement for therapeutic goods for the purposes of the Therapeutic Goods Act 1989 (the Act) and the Therapeutic Goods Advertising Code 2007 (the Code).

The internet advertisement was the subject of a complaint made to the Complaints Resolution Panel (the Panel) on 4 November 2011 [complaint no. 2011-10-031(1)].

On 9 August 2012, the Panel issued a written determination that the internet advertisement breached sections of the Act and the Code.

On 27 September 2012, as a result of Tom McArthur Pty Ltd not fully complying with the Panel's determination, the Panel recommended the TGA delegate of the Secretary of the Department of Health (the Delegate) review the matter.

Following investigation, the Delegate's decision was made on 1 April 2014.

The decision

The Delegate found that the internet advertisement:

  1. contained unapproved restricted representations and was therefore in breach of section 42DL(1)(c) of the Act
  2. contained claims of therapeutic benefits for products that were not included on the Australian Register of Therapeutic Goods and was therefore in breach of section 42DL(1)(g) of the Act
  3. did not comply with the Code and was therefore in breach of section 42DM(1) of the Act
  4. contained claims that were incorrect, unbalanced and not previously verified by the sponsor and was therefore in breach of section 4(1)(b) of the Code
  5. was likely to arouse unwarranted and unrealistic expectations of product effectiveness and was therefore in breach of section 4(2)(a) of the Code
  6. was likely to lead consumers to self-diagnose or inappropriately treat potentially serious diseases and was therefore in breach of section 4(2)(b) of the Code
  7. was misleading or likely to be misleading, both directly and by implication, and was therefore in breach of section 4(2)(c) of the Code
  8. abused the trust and exploited the lack of knowledge of consumers and was therefore in breach of section 4(2)(d) of the Code
  9. contained claims made in testimonials that were misleading and could not be regarded as illustrating typical results and was therefore in breach of section 4(7) of the Code
  10. contained claims of therapeutic benefits in relation to a number of diseases listed in Part 2 of Appendix 6 to the Code and was therefore in breach of section 5(2) of the Code.

The order

The Delegate ordered Tom McArthur Pty Ltd to:

  1. withdraw any representations from its Facebook page that its paw paw cream products have any therapeutic uses
  2. not use any representations that the products have any therapeutic uses in any other advertisement
  3. where representations that the products have any therapeutic uses have been provided to other parties, such as retailers or website publishers, and where there is a reasonable likelihood that the representations have been published or are intended to be published by such parties, to advise them that the representations should be withdrawn
  4. to arrange for the publication of a retraction on its Facebook page in the form noted below.

Conditions imposed on the order

Additionally, 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, Tom McArthur Pty Ltd will provide evidence of compliance with this order
  2. within 10 working days of being notified of this order, Tom McArthur Pty Ltd will provide a written response indicating that it will continue to abide by this order.

Retraction notice

The below retraction notice is to appear on the advertiser's Facebook page for no less than 120 days.

RETRACTION

An advertisement for McArthur Natural Products, which we published on this Facebook page, should not have been published.

The advertisement unlawfully included claims that the products could have therapeutic benefits connected with skin conditions including acne, open wounds or infections, psoriasis, arthritis pain, eczema, polymyalgia, diabetic neuropathy, dermatitis, skin cancer and others. The advertised paw paw products cannot lawfully be promoted for any therapeutic use as these products are not listed in the Australian Register of Therapeutic Goods (the ARTG). No application has been made by us for inclusion of our products in the ARTG.

A complaint about the advertisement was upheld by the Complaints Resolution Panel, which deals with complaints about the advertising of goods which have, or are claimed to have, therapeutic benefits. We provided no evidence to support any of the claims we made, and the Panel found that the claims were unlawful, misleading and unverified, abused the trust and exploited the lack of knowledge of consumers, and breached the Therapeutic Goods Advertising Code and the Therapeutic Goods Act.

The Panel therefore requested that Tom McArthur and Tom McArthur Pty Ltd publish a retraction.

The full texts of the Panel's determinations can be found at the: Complaints Register.

In 2013, the Panel recommended to the Secretary of the Department of Health that an order be made which would have the effect of requiring us to comply with the Panel's requests as we had not done so within the time period the Panel set.

As a result of the Panel's recommendation, the Secretary's delegate considered the complaint, the Panel's determination of it and our responses. The delegate agreed with the Panel's findings and made an order under the Therapeutic Goods Regulations requiring us to publish this retraction on our Facebook page.

A summary of the Secretary's delegate's order can be found at: Decisions in relation to complaints about advertisements.