Court declares false claims made in promotion of solarium use

The Australian Competition and Consumer Commission has succeeded in its important public interest action against those involved in making false claims about, and misrepresenting the risks associated with, solarium use in contravention of the Trade Practices Act 1974.

In July this year the ACCC took action in the Federal Court of Australia against the Australian Tanning Association Inc, Body Bronze International Pty Ltd and Tropical Sun Industries Pty Ltd alleging they had engaged in false, misleading and deceptive conduct in relation to the promotion of solarium use. Action was also taken against Mr Scott Meneilly, the former president of the ATA and former chief executive officer of Body Bronze for being involved in the alleged contraventions of these parties.

Today, the Federal Court declared all parties to the ACCC's action had contravened the Trade Practices Act 1974.*

ACCC Chairman, Mr Graeme Samuel, welcomed the outcome of the case and said it was a notable result not least because of the valuable health message that could be passed on to the Australian community.

"The public should be aware of the representations which the court declared were false or misleading and deceptive. They were:

• 1. There is no evidence linking solarium use with an increased risk of skin cancer; (there is evidence of increased risk)
• 2. A solarium provides the same ultraviolet light as sunlight; (it does not)
• 3. The tanning process does not involve damage to the skin; (it does damage the skin)
• 4. Tanning protects the skin against sunburn and from the risks of sunburn; (it does not)
• 5. Tanning protects the skin from ultraviolet light and the risks of ultraviolet light exposure; (it does not)
• 6. The body repairs any damage to the skin caused by ultraviolet light exposure;(it does not)
• 7. The skin is not damaged by ultraviolet light exposure unless it receives a sunburn; (the skin is damaged)
• 8. Body Bronze's "Tan Smart Registration" form and Tropical Sun's Skin Type Analysis forms could be used to accurately assess a person's Skin Type in order to ascertain a person's tanning and burning ability and predict his or her response to ultraviolet light exposure (the forms could not be used in this fashion).**"

"I suspect some members of the public may have believed one or more of the above statements to be true and decided to purchase solarium services on that basis," Mr Samuel said.

"They should read these statements very carefully and keep in mind that the court has declared them to be false or misleading."

In addition to the declarations, the court also granted injunctions against the parties restraining them from engaging in similar offending conduct.

The court has also ordered each of Body Bronze and Tropical Sun to implement a trade practices compliance program and to publicise the outcome of the proceeding in various forums. All parties have been ordered to pay the costs of the ACCC's action.

Background

*The court declared that the parties had contravened the following provisions of the Trade Practices Act 1974:

• Body Bronze: ss. 52, 53(aa) and 53(c)
• Tropical Sun: ss. 52, 53(aa), 53(c) and 55A
• ATA: ss. 52, 53(aa) and 55A.

Section 52 of the Act prohibits conduct that is misleading or deceptive or is likely to mislead or deceive. Section 53 prohibits the making of certain false representations about goods or services. Section 55A prohibits conduct liable to mislead the public as to the nature, the characteristics and the suitability for their purpose of services.

The court also declared that Mr Meneilly was knowingly concerned in the contravening conduct of the ATA and Body Bronze.

**All parties made representation no.1. Body Bronze made representation no. 2. Body Bronze and Tropical Sun separately made each of the remaining representations.