Swisse Vitamins Pty Ltd v The Complaints Resolution Panel

THE COMPLAINTS PROCESS 14 Towards the end of 2011 two complaints were lodged with the Panel relating to the advertising of some of Swisse's products. Those products were Men's Ultivites, Women's Ultivites, Multi Ultiboost Inner Balance, Ultiboost Sleep, Ultiboost Hair Skin and Nails, Ultiboost Liver Detox, Prevention Pack, Ultiboost Wild Krill Oil, Ultiboost Coenzyme QT, Ultiboost Glucosamine and Ultiboost Chlorophyll. 15 The first of the complaints was given the serial number 001 by the Panel. The second was designated 009. 16 Complaint 009 objected to 10 advertisements for Ultivite products. It also complained about an advertisement for Ultiboost Wild Krill Oil. 17 Complaint 001 raised objections to two of the Ultivite advertisements. It also contained 10 further complaints about advertisements for the remaining products which have been identified above at [14]. 18 There was some overlap between the complaints. They made substantially similar complaints about one of the Women's and Men's Ultivite advertisements and the advertisement for Wild Krill Oil. 19 Each letter of complaint followed a similar pattern. It identified the advertisement and named the person who appeared in the advertisement. The text of the words spoken was set out. The particular phrases in the text to which objection was taken were then identified and reasons were given for alleging a breach of the Code. Thereafter the specific sections of the Code on which reliance was placed were identified. 20 An example is provided by one of the complaints directed to a Men's Ultivite product in complaint 009. It read: "Product: Men's Ultivites (men and women packshot [sic]) Transcript You can be confident that Swisse men's Ultivites work, because they've had them independently tested. The results show Swisse men's Ultivites, helps relieve stress and balance mood, they also helped improve memory function and reduce homcysteine in older men. Swisse men's Ultivites are beneficial for brain and heart health as well as general wellbeing. And I've certainly noticed a difference in my energy levels. One of the only multivitams in Australia with proven results, and that's why I choose Swisse. Tired? Stressed? You'll feel better on stress? [sic] Specific Breaches 1. 1 small unpublished, unreplicated study each cannot be worthy of a claim "proven results". "Proven results" could be interpreted as "clinically proven". 2. "You can be confident that Swisse men's Ultivites work" and "you'll feel better on Swisse" indicates that everyone feels better taking Swisse, claiming effectiveness in all cases. 3. "you'll feel better on Swisse" indicates that everyone feels better taking Swisse, claiming effectiveness in all cases, which is against the advertising code. 4. "you'll feel better on Swisse" this can be seen as a comparative statement which is misleading, does this mean you will not feel better on other brands or products? 5. "you'll feel better on Swisse" This is a brand statement and does not relate to an indication or product which makes it misleading and unrealistic. Breaches of The Code (i) 4(1)b - correct and balanced statements which the sponsor has already verified (ii) 4(2)a - arouse unrealistic expectations of efficacy (iii) 4(2)c - likely to mislead, directly or by implication or through emphasis or omissions (iv) 4(2)h - claims or statement that it is effective in all cases (v) 4(5) - Comparative advertisements must be balanced and must not be misleading or likely to be misleading Comparisons should not imply that the therapeutic goods, or classes of therapeutic goods, with which comparison is made, are harmful or ineffectual." 21 The Panel provided copies of the two complaints to Swisse. It did so under cover of a letter in which it referred to some of its powers and procedures. It advised Swisse that: "If there is no litigation pending or in progress and should you wish to respond to the points raised by the complainant [Regulation 42ZCAC(2)(b)], please provide your response within 10 working days … include a response to the alleged breaches, a copy of each of the advertisements referred to in the complaint and a copy of the ARTG certificate for each of the product(s) which are the subject of this complaint. … Under s 42ZCAE, the Panel requires you to produce evidence in support of your claims. Please take this into account when preparing your response. Address each matter raised by the complainant. Should you wish to provide supporting material for any claims challenged, you must provide an explanation as to how the material supports the complaint [sic] and highlight relevant parts in the material. Please provide pivotal evidence to support the efficacy of the product with respect to the claims subject to complaint. …" 22 Swisse provided a detailed response to each of the allegations contained in the complaints. Its response commenced by dealing with the attack on its use of the phrases "you'll feel better on Swisse" and "clinically proven". 23 It defended its use of the slogan "you'll feel better on Swisse" by saying that: "Firstly, we would like to highlight that on a previous occasion a formal appeal process has been followed, whereby the Delegate of the Minister for Health and Ageing [sic]… did not find the phrase 'You'll feel better on Swisse' to contravene The Code. In regards to the alleged breach raised by the complainant in relation to [that phrase] it is our belief that this generic marketing statement does not contravene sections of The Code relating to arousing unwarranted and unrealistic expectations of product effectiveness. This statement merely amounts to branding or 'marketing speak' that consumers are not likely to take seriously or reasonable rely upon when making a decision whether to purchase Swisse products. In these advertisements the statement is not clearly referable to the indications or efficacy of the product. To clarify, it is not made in the context of a product efficacy statement. It is merely a generic marketing expression that is used on our range of products. To suggest that consumers would read this claim as some guarantee of efficacy of the product is to suggest that consumers are unable to exercise reasonable judgment and have not been exposed to modern marketing practices. This, we strongly believe, is not the case. We understand that the consumer would see it as a subjective marketing statement as opposed to an empirical statement of fact. We also emphasise that the context of 'You'll feel better on Swisse' is very broad, it does not refer soley [sic] to efficacy - consumers who are choosing to supplement their diet with a complimentary medicine are choosing to make a positive impact and difference to their general health, wellbeing and quality of life - helping them to 'feel better' in general." 24 Swisse defended its claim that some products were "clinically proven" by producing a series of reports on clinical trials which had been carried out on the products. This section of Swisse's response concluded with the observation that: "We believe the statistical significance of results in the Swisse Ultivite studies, in conjunction with the balance of positive supportive data from other multivitamin studies is substantial and able [sic] support a clinically proven claim. We do not share the viewpoint of the complainant that this claim requires a meta analysis, due to the large variance in multivitamin formulations this would not be appropriate." 25 Swisse's responses then dealt discretely with each of the specific advertisements about which complaint had been made. Its response to the complaint about Men's Ultivites provides an example: "'Based on over 25 years of research' could be interpreted as all their current Swisse Ultivites having been researched for 25 years. Does this specific multivitamin combination have 25 years of research behind it? This is impossible if its only been on the market for a few years. The company Swisse has been in existence for over 50 years. We confirm the Swisse product range is based on over 25 real years of research by the Swisse team. This is a factual statement and is not intended to mislead consumers, nor do we believe it does. The Swisse product ranges are the brainchild of the Swisse Research and Development team and form a strategic and critical part of the Swisse concept that dates back to the early 1980's. The Swisse team have been for the past several decades researching scientific literature and studying both local and global markets as a foundation for continued development of the Swisse product range. Furthermore, for over two decades the Swisse Research and Development team have been working closely with medical professionals at leading universities - including Swinburne, Melbourne and Southern Cross Universities - whose collective experience far exceeds the 25 years claimed by Swisse. This team effort has granted us the know how to develop effective products based on the assessment of credible, peer reviewed medical studies - as well as double blind clinical studies conducted on the Swisse formulae. The Swisse range exceeds 50 different products, including many more in currently in [sic] development, which the Swisse team plan to roll out over the next 5 years. We trust this addresses the complainant's concern." Swisse also incorporated by reference its general submissions relating to the use of the phrase "you'll feel better on Swisse" and the claim that the product was "clinically proven". 26 The complaints and Swisse's submissions were considered by the Panel, at a meeting on 19 January 2012. It determined to make a request, pursuant to Reg 42ZCAI(1), that all the advertisements about which complaint had been made should be withdrawn from further publication. 27 The Panel rejected the general complaints that "you'll feel better on Swisse" indicated that "everyone feels better taking Swisse" and that the slogan was a comparative statement which implied that a person would not feel better after using a competitor's product. It did, however, find that the use of the slogan in relation to some products was likely to be unsubstantiated or misleading. It said: "19. The Panel formed a view that, generally speaking, the words "you'll feel better on Swisse" would not be interpreted by a reasonable consumer to mean that they would in all cases or always "feel better" as a result of consuming Swisse products. Where the words were used in isolation and not in connection with individual products or specific claims of health benefits, they would probably be regarded as "mere puffery" and not as conveying a clear claim. 20. On the other hand, where the words were used in connection with specific products and clear, specific claims of product benefits, a reasonable consumer would take them to mean that they would "feel better" because of those product benefits. For example, if an advertisement referred to a product offering benefits for digestion, and ended with the words "you'll feel better on Swisse", it was generally likely that a reasonable consumer would link the words to the claims of benefits for digestion, with a meaning like "if you have these kind [sic] of digestive symptoms, this product offers benefits such that you'll feel better after taking it." 21. In general, therefore, the accuracy of the words "you'll feel better on Swisse" depended on surrounding claims about product benefits contained in the same advertisement. Where the surrounding claims complied with the Code, it would generally be the case that the words "you'll feel better on Swisse" would also comply with the Code. On the other hand, in an advertisement where claims of product benefits were unsubstantiated or misleading, then the claim "you'll feel better on Swisse" would also be likely to be unsubstantiated or misleading. 22. The Panel also found that, generally, the words "you'll feel better on Swisse" were not likely to convey a comparison with other products. Rather, they were likely to convey that consumers would feel better after using Swisse products than after using no product at all. The Panel noted that the context of an individual advertisement could, however, readily cause the words to be a comparison with other products." 28 The Panel then considered the advertisements relating to Ultivite products together and the advertisements about other products separately. In dealing with the particular Men's Ultivite advertisement, which has been extracted above at [20], the Panel said: "25. … one of the advertisements included references to stamina, energy, general health, and wellbeing, and 'they're one of the only multivitamins in Australia clinically tested, with proven results, which means I definitely feel the difference.' Another included the words 'helps relieves stress and balance mood, they also helped improve memory function and reduce homocysteine in men … beneficial for brain and heart health as well as general wellbeing.'" The Panel then referred to the results of some studies submitted by Swisse in relation to Men's and Women's Ultivite products and continued: "27. The Panel reviewed the evidence material. The Panel was satisfied that the Harris study could be regarded as evidence for claims about the Men's Ultivite product when taken by healthy men, but noted that it was a fairly small study that could not support claims as strong as 'clinically proven'. The outcomes of the study related to mood, stress, alertness and some other measures. …" 29 It found that the various advertisements relating to Men's and Women's Ultivite products (including the one set out above at [20]) contravened the Code by making representations that had not been verified, were likely to arouse unwarranted expectations and were misleading. It therefore found that each of the Ultivite advertisements breached ss 4(1)(b), 4(2)(a) and 4(2)(c) of the Code. It found that the complaints, in so far as they were founded on ss 4(2)(h) and 4(5), were not justified. 30 The Panel also found that each of the other advertisements contravened one or more provisions of the Code. 31 The Panel set out its conclusions in paragraph 82 of its reasons as follows: "The Panel requests Swisse Vitamins Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990: a) to withdraw the advertisements from further publication; b) to withdraw any representations that: i) any of the advertised products are 'clinically proven' or 'independently tested' to have the benefits described in the advertisements, have 'proven results', or provide 'clinically recommended' dosages; ii) the Women's Ultivite product can offer benefits in relation to tiredness, or benefits in relation to stress other than in the context of PMS; iii) the Women's Ultivite product can improve the symptoms associated with PMS by 50 percent, in the absence of a disclosure that a placebo reduced the same symptoms by 28.6 percent; iv) the Men's Ultivite product can have benefits related to memory function or heart health; v) The Ultiboost Inner Balance product can maintain the balance of friendly flora in the body, help maintain a healthy digestive system, enhances the body's natural immune defence or is 'scientifically shown to' do so, or is 'one of the most potent probiotics you can buy'; vi) the Ultiboost Sleep product can cause consumers to have a good sleep and wake up 'fresh', help relax, relieve nervous tension, reduce the time to fall asleep, or is based on over 25 years of research, or that other sleep products by comparison with the advertised product leave consumers feeling 'hung over' the next day; vii) the Ultiboost Hair Skin and Nails product promotes collagen production or is able to cause hair to become glossy, skin to become radiant, and nails to become healthy; viii) the Ultiboost Liver Detox can relieve feelings of 'sluggishness', offer benefits to consumers who have drunk alcohol, support a healthy liver, detoxify, or relieve indigestion or bloating; ix) the Prevention Pack, or the products contained in it, can prevent consumers from becoming ill, support the immune system, reduce the severity of colds, or aid digestive health, or is for prevention of ailments or illnesses; x) the Ultiboost Wild Krill Oil product provides benefits for joint and heart health in ordinary healthy consumers, is absorbed twice as effectively as other fish oil capsule products, or is 'a third of the size' of other fish oil capsules; xi) The Ultiboost Coenzme Q10 product contains an ingredient that is better absorbed by the body than other forms, or that it provides a 'clinically recommended dosage' or has been 'proven to support a healthy heart'; xii) the Ultiboost Glucosamine product contains a form of ingredient that has been shown or proven to be more effective than other forms or provides a dosage that has been clinically recommended; xiii) The Ultiboost Chlorophyll products offer benefits for people feeling sluggish, or can aid digestion and eliminate toxins; or xiv) consumers will 'feel better on Swisse', where the representation is used in conjunction with any of the representations already noted above. c) not to use the representations in (b) above in any other advertisement*; d) 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 representation(s) should be withdrawn; e) within 14 days of being notified of this request, to provide evidence to the Panel of its compliance, including a response in writing that they will comply with the Panel's sanctions, and where appropriate, supporting material such as copies of instructions to advertising agents or publishers, or correspondence with retailers and other third party advertisers." The asterisk at the end of paragraph (c) directs the reader's attention to a footnote which reads: "Under regulation 42ZCAI of the Regulations, the Panel may request that a representation not be used in any other advertisement unless the advertiser satisfies the Panel that the use of the representation would not result in a contravention of the Therapeutic Goods Act 1989, the Therapeutic Goods Regulations 1990 or the Therapeutic Goods Advertising Code. Under the Panel's procedures, the Panel will not ordinarily give additional consideration to such a matter unless significant new material that was not available at the time of the Panel's determination has become available, or until at least 12 months have passed since the Panel's request was made." 32 It is necessary at this point to turn in greater detail to the findings and "requests" relating to advertisements for other products. 33 Ultiboost Inner Balance. The complaint about the advertisement for this product was made in complaint 001. The text of the advertisement read: "Swisse Ultiboost Inner Balance, its [sic] a high potency probiotic to help maintain the balance of friendly flora in the body. Swisse Ultiboost Inner Balance not only helps maintain a healthy digestive system its [sic] been scientifically shown to enhance the bodies natural immune defense as well [sic]. With 26 billion good bacteria in each capsule it's one of the most potent probiotics you can buy. Keep it in the fridge to maintain potency, and you'll feel better on Swisse." 34 The following breaches were alleged: "• 'you'll feel better on Swisse' indicates that everyone feels better taking Swisse, claiming effectiveness in all cases, which is against the advertising code. In order for this to be balanced and avoid misleading the consumer - this should instead be worded you 'may' feel better on Swisse. • 'you'll feel better on Swisse' this can be seen as a comparative statement - whereby consumers will feel better taking the Swisse brand than if they were to take other available brands. This is not verified, justified or allowed under the code. • 'you'll feel better on Swisse'. Of further concern is that this statement is most often used in relation to the Swisse brand overall and not a specific product with listed indications. Even when craftily used in relation to a specific product with listed indications- it would be considered comparative. However - this is an overt breach and 'slap in the face' when used in relation to the brand overall. As the Swisse brand does not have listed indications per se- use of this statement in relation to the brand cannot relate to a condition or indication. Therefore if you can not 'feel better' in relation to a specific problem or state, and it is not linked to a listed indication- then it can only by definition be intended to be a comparative statement versus other brands on the market place. This is misleading, and contravenes the code." The terms of these objections were replicated in respect of a number of other advertisements. It will be convenient to refer to them, hereafter and collectively, as the "you'll feel better on Swisse objections". 35 Beneath the objections reference was made to ss 4(1)(b), 4(2)(a), 4(2)(c), 4(2)(h) and 4(5) of the Code. The same provisions were relied on in relation to many of the other complaints. It will be convenient to refer to them hereafter and collectively as "the particular Code provisions." 36 In its response Swisse merely referred to its general statements in defence of its slogan. 37 The Panel did not, however, confine itself to dealing with the you'll feel better on Swisse objections. It said: "39. The advertisement promoting the Inner Balance product included claims of benefits such as 'maintain[ing] the balance of friendly flora in the body', 'helps maintain a healthy digestive system', 'scientifically shown to enhance the body's natural immune defence as well', 'it's one of the most potent probiotics you can buy', and 'keep it in the fridge to maintain potency, and you'll feel better on Swisse.' 40. The advertiser provided no evidence in support of these claims of product benefits. In the absence of any evidence, the Panel was satisfied that all of the representations noted above had not been verified, were likely to arouse unwarranted expectations, and were misleading, in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code. These aspects of the complaint were therefore justified." The Panel found that the advertisement had not breached s 4(2)(h) or s 4(5) of the Code. 38 The Panel proceeded to make the "requests" at paragraph 82(b)(v) which referred to particular phrases in the advertisement to which no express objection had been made in the complaint. 39 Ultiboost Hair, Skin and Nails. The complaint about the advertisement for this product was also made in complaint 001. The text of the advertisement read: "To get that glow on the outside, the best place to start is within, that [sic] why I choose Swisse Ultiboost hair skin nails liquid. It's a unique beauty formula with premium quality silica, vitamin C and antioxidant rich Sicilian blood orange to promote collagen production and provide essential nutrients for glossy hair, radiant skin and healthy nails. In fact its [sic] one of the most potent silica formulas you can buy and it tastes great too, that why you'll feel better on Swisse." 40 The alleged breaches were the you'll feel better on Swisse objections. Reference was made to the particular Code provisions. 41 In its submissions Swisse simply incorporated by reference its general defence of the use of its slogan. 42 In its reasons the Panel found that: "47. The advertisement promoting the Ultiboost Hair Skin and Nails product included representations about benefits such as promoting collagen production and 'providing essential nutrients for glossy hair, radiant skin, and healthy nails.' The Panel noted that a reasonable consumer viewing the advertisement would conclude that the product was able to cause hair to become glossy, skin to become radiant, and nails to become healthy when taken by a typical consumer. The advertisement also included the words 'you'll feel better on Swisse.' 48. The advertiser provided no evidence in support of these claims of product benefits. In the absence of any evidence, the Panel was satisfied that all of the representations noted above had not been verified, were likely to arose unwarranted expectations, and were misleading, in breach of sections 4(1)(b), 4(2)(a) and 4(2)(c) of the Code. These aspects of the complaint were therefore justified." The Panel found that the advertisement had not breached s 4(2)(h) or s 4(5) of the Code. 43 The Panel then proceeded to make the "request" contained in paragraph 82(b)(vii). 44 Ultiboost Liver Detox. The complaint about the advertisement was also made in complaint 001. The text of the advertisement read: "Fed up with feeling sluggish? Swisse Ultiboost liver detox can help. With traditional herbs to support a healthy liver and used for healthy indigestion and bloating as well. It's great to help the body detox so I take it before bed if I've had a few drinks. The Swisse Ultiboost range contains premium quality ingredients based on over 25 years of research, that's why I choose Swisse and why you'll fell [sic] better on Swisse." 45 The you'll feel better on Swisse objections were then made and were followed by references to the particular Code provisions. 46 Again, Swisse merely referred to its general defence of its slogan. 47 The Panel dealt with the complaint about this advertisement as follows: "50. The advertisement promoting the Ultiboost Liver Detox product made reference to 'feeling sluggish' and 'tak[ing] it before bed if I've had a few drinks', and included representations about benefits such as supporting a healthy liver, indigestion, bloating, and detoxifying. It also included the words 'you'll feel better on Swisse.' 51. The advertiser provided no evidence in support of these claims of product benefits. In the absence of any evidence, the Panel was satisfied that all of the representations noted above had not been verified, were likely to arouse unwarranted expectations, and were misleading, in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code. These aspects of the complaint were therefore justified." The Panel found that the advertisement had not breached s 4(2)(h) or s 4(5) of the Code. 48 The Panel concluded by making the "request" contained in paragraph 82(b)(viii). 49 Swisse Prevention Pack. The advertisement relating to this product was also objected to in complaint 001. The text of the advertisement read: "Swimming for Australia takes serious training and travel, so we can't afford to get sick. That's why the team carries the prevention pack, with Swisse Ultiboost Zinc plus to help support our immune systems, Super C to help reduce the severity of colds, and Inner Balance a probiotic that helps support immunity and digestive health. The Swisse Ultiboost range, premium quality ingredients based on over 25 years of research, that's why the Australian swim team choose Swisse and why you'll feel better on Swisse." 50 The you'll feel better on Swisse objections were then made together with an objection that "[p]revention claims are reserved for registered products, not allowed for listed products." 51 The particular Code provisions were then listed. 52 Swisse responded with the following submissions: "We confirm that all label claims for the products featured in this advertisement are compliant with the corresponding ARTG listings and make no reference to prevention. The products in this pack - Swisse Ultiboost Inner Balance, Swisse Ultiboost High Strength C and Swisse Ultiboost Immune have all been chosen for their indications for general well being and immune support. The Australian Swimming Team have a program in place self-titled as "The Australian Swimming Team Prevention Pack", other products in this pack include tissues, antibacterial hand wash, sinus wash and sore throat gargle. The intention behind this pack is to maintain a healthy immune system - which is reflected by the indications for the associated Swisse products. We attach a document that outlines the Australian Swimming Team's wellness program (Reference 9), also known as the Prevention Pack. We believe this to be adequate verification that the reference to prevention is completely independent to the indications for the featured Swisse products." It concluded by referring to its general defence of the use of its slogan. 53 In its reasons the Panel found that: "53. The advertisement promoting the Swisse Prevention Pack stated that it was used by the Australian swimming team because they 'can't afford to get sick', and included claims of benefits such as supporting the immune system, reducing the severity of colds, supporting immunity, and aiding digestive health. It also included the words 'you'll feel better on Swisse.' 54. The advertiser provided no evidence in support of these claims of product benefits, although some evidence was provided about the existence of a 'Prevention Pack' containing additional products used by the Australian swimming team. In the absence of any evidence about product benefits, the Panel was satisfied that all of the representations noted above (including the representation that the product was a 'prevention' pack or could prevent sickness) had not been verified, were likely to arouse unwarranted expectations, and were misleading, in breach of sections 4(1)(b), 4(2)(a), and 4(2)(c) of the Code. These aspects of the complaint were therefore justified." The Panel did not find that this advertisement had breached s 4(2)(h) or s 4(5) of the Code. 54 The Panel then proceeded to make the "request" contained in paragraph 82(b)(ix). 55 Ultiboost glucosamine. The complaint about this advertisement was also made in complaint 001. The text of the advertisement read: "Swisse are committed to helping you feel better. That means they use the recommended amounts of quality ingredients to ensure results. For example Swisse Ultiboost Glucosamine Plus contains glucosamine sulphate, a premium ingredient proven in clinical trials to be more effective than some other forms you can buy. What's more the dosage supports joint health and helps relieve the symptoms of arthritis. Clinically recommended dosages of quality ingredients, that's why I choose Swisse and why you'll feel better on Swisse." 56 The you'll feel better on Swisse objections were then made relying on the particular Code provisions. 57 Swisse's response merely referred back to its general defence of its slogan. 58 In its reasons the Panel found that: "69. The advertisement promoting the Ultiboost Glucosamine product stated that it contained 'glucosamine sulphate, a premium ingredient proven in clinical trials to be more effective than some other forms you can buy', and that 'the dosage supports joint health and helps relieve the symptoms of arthritis'. It included the words, 'clinically recommended dosages of quality ingredients - that's why I choose Swisse and why you'll feel better on Swisse.' 70. The advertiser provided no evidence in support of these claims of product benefits, or in support of the claims that glucosamine sulphate was 'proven in clinical trials' to be more effective than other forms or that the dosage provided by the advertised product was 'clinically recommended'. In the absence of any evidence, the Panel was satisfied that all of the representations noted above had not been verified, were likely to arouse unwarranted expectations, and were misleading, in breach of sections 4(1)(b), 4(2)(a) and 4(2)(c) of the Code. These aspects of the complaint were therefore justified. 71. The Panel was also satisfied that this advertisement breached section 4(2)(h) of the Code, by implying that the advertised product would be effective in all cases of arthritis. This aspect of the complaint was therefore justified. 72. The Panel was satisfied that this advertisement did contain a comparison with other therapeutic goods ('other forms [of glucosamine] you can buy'), and that the comparison was not balanced or accurate, and had not been substantiated by the advertiser, in breach of section 4(5) of the Code. This aspect of the complaint was therefore justified." 59 The Panel then proceeded to make the "request" in paragraph 82(b)(xii). 60 These complaints can be contrasted with others in which specific complaints were made about the efficacy of a product or in which it was alleged that there was no proper scientific evidence for claims made. Both complaints relating to the Wild Krill Oil advertisement, for example, included an allegation that: "Evidence for a clinically proven claim does not exist for this ingredient. Only clinically trialed [sic] with one claim for each."

THE PARTIES' SUBMISSIONS 61 Swisse contended that, in making these findings, the Panel had denied it procedural fairness and failed to satisfy the obligation imposed on it by Regs 42ZCAC, 42ZCAD and 42ZCAH(2). Relief was sought under the ADJR Act on the basis that the Panel's "requests" constituted "decisions" as defined in that Act. The parties were agreed that paragraph 82 should be understood as expressing a series of discrete, but related, decisions for the purposes of the ADJR Act. 62 The Panel accepted that it was required to accord Swisse procedural fairness and that it was obliged to comply with Reg 42ZCAH. It submitted that it had not failed to meet these obligations. It also accepted that, had it failed to accord procedural fairness, relief was available to Swisse under the ADJR Act. 63 The central question in the proceeding is, then, whether or not Swisse was denied procedural fairness by the Panel. Swisse put its case on a number of bases. Its principal complaint was that the Panel had made a series of adverse findings without first according Swisse the opportunity of making submissions about these matters. This had occurred either because the terms of the relevant complaints were not sufficiently clear so as to alert Swisse to the possibility that a particular contravention was being alleged against it or because the Panel had made adverse findings despite no relevant allegation having been made by the complainant. 64 As will become apparent some difficulty arises, when assessing the submissions made by Swisse, because of the way in which the Panel has expressed some of its reasons and, in particular, in identifying the "sanctions" which it imposed in paragraph 82. 65 Swisse pointed to a number of "requests", made in paragraph 82, which, it contended, could not be linked to any specific complaint about the product of which it had been advised. An example is provided by the Men's Ultivite advertisement and the related complaint to which reference is made above at [20]. It pointed out that no complaint had been made about the assertion, in the advertisement, that Swisse had had the products "independently tested". Nor did the complainant object to the statement that the results of such testing had shown that Men's Ultivites had helped improve memory function and were beneficial for heart health. 66 As a result Swisse had not felt the need to make submissions to the Panel defending these parts of the advertisement. 67 The Panel, however, had dealt with these matters and made adverse findings about them: see above at [28]. 68 These adverse findings had led to the "requests" that: The advertisement be withdrawn from further publication: see paragraph 82(a); The representation that the product had been "independently tested" be withdrawn: see paragraph 82(b)(i); and The representation that the Men's Ultivite products can have benefits related to memory function or heart health be withdrawn: see paragraph 82(b)(iv). 69 Swisse made similar complaints about the findings that led to the "requests" relating to the withdrawal of the representations identified in paragraphs 82(b)(ii) and (iii) which also dealt with Ultivite products and the other products identified above in paragraphs [33], [39], [44], [49] and [55]. In each of these cases there was no express complaint relating to claims that the products had been "independently tested" or in relation to the specific representations which the Panel sought to have withdrawn. As a result Swisse had not considered it to be necessary to deal with these matters in its response to the Panel. 70 The Panel denied that any denial of procedural fairness had occurred. It submitted that it was sufficient for it to advise Swisse of any impugned advertisement and to draw Swisse's attention to the particular provisions of the Code which it was alleged to have breached in each case. It also noted that Swisse had been invited to furnish any material on which it relied to support any of the claims made in the various advertisements. This was sufficient to alert Swisse to the allegations made against it and the issues to which they gave rise. Although no specific complaints had been made about those parts of the advertisements which Swisse had identified, they were deficiencies comprehended by one or more of the Code provisions which the Panel had found to have been breached. 71 In the alternative the Panel submitted that relief should not be granted in respect of the "requests" which related to those complaints which included efficacy objections.

consideration 72 Section 5 of the ADJR Act empowers the Court to grant an order of review in respect of a decision to which the Act applies. It may make such an order on a number of grounds including that a breach of natural justice has occurred in connection with the making of the decision. The Act applies to decisions of an administrative character which are made under enactments such as the Act, the Regulations and Code presently under consideration. 73 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 Mason CJ said that: "a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment." 74 Regulation 42ZCAI(1) empowers the Panel to make a "request" in writing if it is satisfied that a contravention of the Code has occurred. The "request" is, therefore, the consequence of the making of an antecedent "decision" under Reg 42ZCAI(1), that a contravention of the Code has occurred. So much is recognised in sub-regulation 42ZCAI(5) which requires the Panel to give written notice of any "decision" it has made under sub-regulation (1). 75 The Panel's decision and any consequential "request" has the potential to impinge on the rights and interests of an advertiser. Unless the request is complied with the Panel can make recommendations to the Secretary including that the Secretary withdraw approval for the advertisement, suspend the registration or listing of the advertised goods and order the withdrawal of the advertisement: see Reg 42ZCAI(3) and (4). The Secretary has power, under the Act, to act on these recommendations. 76 The Panel's decisions under Reg 42ZCAI(1) are to be made in respect of individual advertisements. The "requests" which are made in paragraph 82 of the Panel's reasons each, implicitly at least, refer to individual antecedent decisions made under Reg 42ZCAI(1). 77 The parties were, therefore, in my opinion, correct to agree that the Panel had made a series of decisions within the meaning of the ADJR Act relating to particular advertisements and that those decisions were reflected in the terms of paragraph 82 of its reasons. 78 At common law the Panel was required to accord Swisse procedural fairness before making adverse findings and "requests": see Annetts v McCann (1990) 170 CLR 596 at 598. Swisse was also entitled to a measure of procedural fairness under Regs 42ZCAC, 42ZCAD and 42ZCAH. 79 It is first necessary to determine what measures the Panel was required to adopt in order to ensure that its obligation to accord Swisse procedural fairness was satisfied and whether Swisse was accorded the necessary protection. 80 It is a fundamental requirement of procedural fairness that a person whose interests may be prejudiced by an administrative decision is entitled to "have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it": see Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 at 108 (per Jenkinson J). 81 In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, in a passage which was subsequently quoted with approval by Gleeson CJ, Gummow and Heydon JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 219, a Full Court of this Court said (at 591-2) that: "Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." 82 The Panel sent the two complaints to Swisse. It referred to some of the powers and procedures of the Panel. It also advised Swisse that it was required to produce evidence in support of its claims and to address "each matter raised by the complainant.". Swisse was invited to "provide pivotal evidence to support the efficacy of the product with respect to the claims subject to the complaint." Swisse was also invited "to respond to the points raised by the complainant" (emphasis added). Swisse's attention was thus directed to the text of each complaint in respect of each of the advertisements. 83 Swisse did as it was asked. It dealt specifically with each of the alleged breaches in respect of each product. It supported its impugned claims that products were "clinically proven" by forwarding copies of the results of clinical trials which had been performed in relation to the products. Where specific complaints about the efficacy of a product were made Swisse responded to that aspect of the complaint. Where they were not it did not do so. 84 The Panel was required, at common law, to identify to Swisse any critical issue on which the Panel's decisions, in each case, might turn. The Panel sought to satisfy this obligation by providing Swisse with a copy of the two complaints and requesting Swisse to respond to the "claims" made by each complainant and the "points raised" by each complainant. 85 In responding to the complaints about the advertisements covered by sub-paragraphs (ii), (iii), (iv), (vi), (vii), (viii), (ix) and (xii) of paragraph 82(b) of its reasons the Panel implicitly found that claims made by Swisse in respect to the benefits which might be obtained from taking a particular product contravened a number of sections of the Code. It did so notwithstanding the absence of any specific complaint being made about the particular statements in the advertisements which the Panel found had contravened the Code. 86 Had the Panel, in the course of its consideration of the two complaints, come to the view (as it did) that particular statements made in an advertisement contravened the Code in a way not alleged by one of the complaints, Reg 42ZCAH required the Panel to provide Swisse with notice that it had come to this decision and invite Swisse to make further submissions. This obligation extended to the provision of "details of the matter not mentioned in the complaint" which the Panel considered contravened the Code: see Reg 42ZCAH(1) and (3). The Panel gave Swisse no such notice in respect of the decisions to which it came in relation to the products covered by sub-paragraphs (ii), (iii), (iv), (v), (vii), (viii), (ix) and (xii) of paragraph 82(b) of its reasons. 87 These failures, in my view, constituted a denial of natural justice to Swisse within the meaning of s 5(1)(a) of the ADJR Act and a contravention by the Panel of Reg 42ZCAH. 88 Given that each "request" flowed from a separate "decision" for the purposes of the ADJR Act it would, in the normal course, be only those decisions which were affected by an absence of notice which should be set aside. 89 The terms in which the Panel has, however, framed its "requests" accord the "decisions", on which the requests were founded, a wider impact to the detriment of Swisse. These terms have inextricably linked all of the decisions. 90 The Panel, it will be recalled, determined that the words "you'll feel better on Swisse" did not, standing alone, contravene the Code. They would, however, become unsubstantiated or misleading if used in conjunction with specific claims relating to the efficacy of a particular product which contravened the Code (see above at [27]). 91 The slogan was used in respect of efficacy claims which the Panel found to be unsubstantiated or misleading having denied Swisse procedural fairness. 92 Paragraph 82(b)(xiv) requested Swisse to withdraw any representation that consumers will "feel better on Swisse" when the slogan is used in conjunction with any of the representations earlier appearing in sub-paragraph (b). These usages include the ones in respect of which procedural fairness was denied. 93 The problem is further compounded by "request" 82(c) which asks Swisse not to use any of the representations referred to in the preceding sub-paragraph in any other advertisement. One such representation is that consumers will "feel better on Swisse". The result is that Swisse would be prevented from using the slogan in any advertisement for its products whether or not it was used in conjunction with an efficacy claim or not. If it wished to do so it would, according to the Panel's advice, have to make an application to the Panel which would not ordinarily consider it for at least 12 months.

DISPOSITION 94 In these circumstances each of the "requests" made by the Panel in paragraph 82 of its reasons should be set aside. 95 The further hearing and determination of the complaints should be remitted to the Panel for further hearing and determination according to law. 96 Swisse sought a direction that, if the matter were to be remitted to the Panel, the Court should direct that any further hearing should be conducted by a differently constituted Panel. 97 The Court has power to give such directions under s 16(1) of the ADJR Act: cf Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at 538 (per Gummow and Hayne JJ), 553 (Kirby J) in which the High Court considered similar provisions in s 481(1) of the Migration Act 1958 (Cth). 98 There have been different views expressed as to the way in which the Court's discretion should be exercised in the "ordinary" case: see the authorities referred to in Comcare v Broadhurst [2011] FCAFC 39 at [89]-[94] (per Tracey and Flick JJ). In that case Downes J expressed the view that "[e]xcept in a clear case the interests of justice and the statutory requirements will generally best be served by a hearing before the Tribunal constituted as it was originally": at [31]. 99 The tribunal whose decision was challenged in Broadhurst was the Administrative Appeals Tribunal. It has a large membership and the President had a statutory power to allot members to hearings. It was thought best to leave it to the President to determine how the tribunal should be constituted on a remitter from the Court. 100 My attention has not been drawn to any equivalent provision in the regulations relating to the constitution of the Panel and I do not know how many members it has and whether there are sufficient members who were not involved in the original decisions to enable any further hearing to be undertaken by a Panel comprising members who were not involved in the making of those decisions. 101 I do not, therefore, propose to give a direction of the kind sought by Swisse. 102 If, upon remittal, a differently constituted Panel can be assembled but nonetheless some or all of the Panel members who dealt with the original complaints sit to further hear and determine the complaints, it may be open to Swisse to object to them doing so on the ground of perceived bias: cf Re Toohey and Tax Agents' Board (2009) 49 AAR 427. Whether or not such an application is made and, if so, whether it will be successful, will depend upon the circumstances then obtaining. I do not seek, in making these observations, to pre-empt the outcome of any such application should it be made. 103 In this context I note that it was unfortunate that, in the absence of an alternative contradictor, the Panel was forced to defend its own decisions. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.