Medical, health service providers warned on advertising

The advertising of medical and health services is as subject to the law as any other sector despite relaxation of restrictions, the industry was warned yesterday.

Launching a guide to advertising and promotion in the sector, with the NSW Health Care Complaints Commissioner, Ms Amanda Adrian, Australian Competition and Consumer Commission Chairman, Professor Allan Fels, said advertising and the professional conduct of practitioners was a continuing focus for the agencies.

"Court action has been undertaken by the agencies regarding advertising or professional conduct", Professor Fels said. "For example the ACCC has just instituted two legal proceedings regarding alleged misleading and deceptive advertising and promotion conduct in the health sector.

"In the first case, proceedings have been instituted against Emerald Ocean Distributors, which retails electronic muscle stimulation products generally referred to by the trade name 'Slendertone'. The ACCC has alleged that the firm represented in the magazines Women's Health and Ultrafit, as well in a firm's pamphlet and its website, that the Slendertone product could:

• tone and firm any part of the body with no effort by the user;
• provide the user with the benefit of a workout without exercise
• reduce the user's weight;
• reduce the user's body measurements by an inch or more;
• give the user, in 40 minutes per day, the equivalent of 300 general exercises;
• flatten the user's stomach without effort; and
• reduce cellulite.

The ACCC alleges these representations were false, misleading or deceptive.

"The ACCC is seeking court orders restraining the firm from promoting the supply of Slendertone products using the claims above; declarations of breaches of the law; refunds for affected consumers; a compliance program and costs.

"In the second case, the ACCC has instituted legal proceedings against Mr Paul Storer alleging that he made false and misleading representations about the benefits of using the product Probiotics used in isolation as a cure for Chronic Fatigue Syndrome. The representations are alleged to have occurred in lectures and workshops conducted by Mr Storer on the Gold Coast, Melbourne, Adelaide and Perth, and on the television programs, Today Show and A Current Affair. The ACCC alleges that Mr Storer claimed that there were more than 1,000 published articles supporting the use of Probiotics in treating the syndrome; represented that sufferers needed the product; and that the product had a 60 to 70 per cent success rate. The ACCC also alleges Mr Storer claimed to be a 'doctor' including a claim of a PhD in microbiology from the University of Western Australia. The ACCC alleges that the latter claim is either false or can not be substantiated.

"The ACCC is seeking courts orders restraining Mr Storer from making the representations; declarations of breaches of the Act; corrective advertisements; refunds for affected consumers; a compliance program and costs.

"Enforcement of the law is a high priority for both agencies as consumers must be fully and truthfully informed about medical and health services.

"Investigations the ACCC has undertaken has included complaints about advertising or other promotional activity regarding impotency, proctology and weight-loss clinics; hair removal claims; laser eye surgery and 'miracle cures' including therapeutic 'ion mats'.

"Although the States and Territories have recently relaxed tight restrictions on advertising in the sector permission has not been given for 'open slather' to mislead consumers.

"Worryingly, there appears to be a belief in some quarters of the sector that deregulation means 'anything goes' and there is a 'free-for-all'. This is not true and suggests misunderstanding or ignorance of the consumer protection parts of the Trade Practices Act 1974 and the equivalent Fair Trading Acts of the States and Territories.

"The ACCC welcomes the greater opportunity for medical and other health sector professionals to communicate directly with consumers through advertising. However it urges professionals to ensure they better understand their legal obligations in relation to advertising or other promotional conduct.

"Advertisements can be extremely useful for the community to clearly inform it about the services of particular groups – but they must not mislead, for example, about efficacy of such services.

"To assist the sector to better understand its rights and responsibilities in this area the ACCC and HCCC, acting in consultation with and for each of the State/Territory health complaints agencies, have produced a broad guide which covers the entire medical and health sector. The guide was produced in consultation with stakeholders around Australia.

"The guide aims to help the sector to develop strategies to ensure compliance with the various Acts. Among the areas where medical and other health sector professionals must proceed with caution are: disclaimers and qualifications; omission of important information; use of 'fine print'; comparative advertising; exaggerated and unsubstantiated claims; advertising requiring or suggesting self-diagnosis; use of titles and qualifications; use of testimonials and photographs; claims about certification, approval, price, costs and time; and disclosure of financial interests".

Fair treatment: Guide to the Trade Practices Act for the advertising or promotion of medical and health services is available from the ACCC, the HCCC and will be available on the ACCC website: www.accc.gov.au. It is free of charge.