It’s Official: IHRB ads unlawful
Print This Post
The Complaints Resolution Panel handed down a Determination on 16 November 2011, finding IHRB’s advertisements and their claims to be, ‘Unlawful, misleading, and unverified, and breached the Therapeutic Goods Advertising Code.’
A total of 12 Sections of the Act and Codes were breached. The Panel has placed three new Sanctions on IHRB: 1) Publication of retractions on-line and in all the print media where the representations were made; 2) Withdrawal of representations, and 3) Withdrawal of advertisement.
Above is the photo of the first 800-page folder that was sent to the Panel as part of the Complaint. Another 50-page summary was sent several months later. The Panel reviewed the evidence and independently assessed findings after Mr Samuel Cohen, via his lawyer, sent his lengthy counter-arguments. If you would like to read the Panel’s 16-page Determination, please click here to download the PDF
To read a copy of the Australian Government’s Therapeutic Goods Advertising Code, please click here to download the PDF
To keep an eye on how many days IHRB remains in breach, click here for the Breach Counter.
[UPDATE: The Panel was fed up with Sam Cohen’s recalcitrance, that it escalated the breaches to the federal Secretary to the Department of Health in Canberra. Click here to read about this development.]
THE PUNCHLINE?
These Sanctions open new cans of worms. However, despite the lengthy submission, after Mr Sam Cohen sought a special extension from the CRP, and after engaging his lawyer, we arrive at the single punch line: that Mr Cohen and IHRB have not been able to verify any of the statements made in the ads. The ads and the claims make unlawful statements, misleading statements, and statements that have not been verified! When asked by the Panel to prove any of it, IHRB could prove NONE OF IT. Not only are the ads misleading and deceptive, and not only do I maintain that the IHRB contract is misleading and deceptive, and not only has the Health Care Complaints Commission found that Mr Cohen endangered the health and safety of his clients, we arrive at the biggest conclusion of all, that, as I have been alleging for over two years, IHRB is a fraud and a scam. If not a single claim could be proved by IHRB to the Panel, then what is IHRB selling? The ads are unlawful because I believe the whole business is unlawful. That’s one mighty punchline.
CODES THAT WERE BREACHED
BREACH 1 — UNVERIFIED STATEMENTS — CODE 4(1)(b) says: ‘An advertisement for therapeutic goods must contain correct and balanced statements only and claims which the sponsor has already verified.’
BREACH 2 — UNREALISTIC EXPECTATIONS — CODE 4(2)(a) says: ‘An advertisement for therapeutic goods must not be likely to arouse unwarranted and unrealistic expectations of product effectiveness.’
BREACH 3 — MISLEADING VIA OMISSION — CODE 4(2)(c) says: ‘An advertisement for therapeutic goods must not mislead, or be likely to mislead, directly or by implication or through emphasis, comparisons, contrasts or omissions.’
BREACH 4 — EXPLOITING CONSUMERS — CODE 4(2)(d) says: ‘An advertisement for therapeutic goods must not abuse the trust or exploit the lack of knowledge of consumers or contain language which could bring about fear or distress.’
BREACH 5 — MIRACULOUS CURE — CODE 4(2)(g) says: ‘An advertisement for therapeutic goods must not: contain any claim, statement or implication that it is infallible, unfailing, magical, miraculous, or that it is a certain, guaranteed or sure cure.’
BREACH 6 — EFFECTIVE IN ALL CASES — CODE 4(2)(h) says: ‘An advertisement for therapeutic goods must not contain any claim, statement or implication that it is effective in all cases of a condition.’
BREACH 7 — NO SIDE-EFFECTS — CODE 4(2)(i) says: ‘An advertisement for therapeutic goods must not contain any claim, statement or implication that the goods are safe or that their use cannot cause harm or that they have no side-effects.’
BREACH 8 — ACCURATE SCIENTIFIC INFORMATION — CODE 4(4) says: ‘Any scientific information in an advertisement should be presented in a manner that is accurate, balanced and not misleading.’
BREACH 9 — COMPARATIVE ADVERTISING — CODE 4(5) says: ‘Comparative advertisements must be balanced and must not be misleading or likely to be misleading, either about the therapeutic goods advertised or the therapeutic goods, or classes of therapeutic goods, with which it is compared.’
BREACH 10 — TESTIMONIALS — CODE 4(7) says: ‘Testimonials must not breach the Code. They must be documented, genuine, not misleading and illustrate typical cases only.’
BREACH 11 — MINIMUM REQUIREMENTS — CODE 6(3) refers to labelling and listing of ingredients and special warnings.
BREACH 12 — ACT (SEC 42C) refers to it being an offence to publish advertisements for therapeutic goods in specific media that does not have approval.
IHRB WAS SANCTIONED ONCE BEFORE
Sadly, IHRB had misled consumers before. When I became a client, I was lured by an ad that should never have been published, because Sanctions had been in place for a long time, but Mr Sam Cohen had ignored those Sanctions for 12 months. The Panel then warned Mr Cohen a second time, and reported him to the Secretary for the Department of Health. You can read about the first set of Sanctions at this link and then you can read about how IHRB had failed to comply with those Sections at this link.
IHRB ORDERED TO PUBLISH RETRACTIONS
The Complaints Resolution Panel has directed IHRB and Mr Sam Cohen to publish retractions, saying, ‘An advertisement to appear in all publications where the print advertisements were published at the earliest booking opportunity.’ The Panel also specified that the ad must be early in the publication and on a right-hand page, in a size that is the same as the size of the ads. In this case, these retractions need to be full-page ads, because most IHRB ads have been full-page ads.
This is the exact retraction that IHRB has been ordered to publish as an advertisements in all newspapers and magazines where IHRB had unlawfully misled readers. The ad is to be the same size as regular IHRB ads, which means it must be a full-page retraction. The Panel requires that the heading is to be at least 20 points, red on white background, in bold. The text to be at least 12 point in red, black, and blue on a white background, bold. The whole text box is to be red on a white background.
THE WEBSITE RETRACTION
As for the IHRB website, the Complaints Resolution Panel has ordered IHRB to publish a retraction on the front page of IHRB’s website, so that it can be viewed without scrolling the page. The retraction must appear for 180 days and be no less than 500 pixels wide and 200 pixels high. The image below is exactly 500 x 200 pixels, for your reference:
THE FUNNY BITS THAT EMERGED
Before we take a deeper look into the Panel’s findings, here are a few important (albeit amusing and bemusing) points that have emerged:
1) Via his solicitor, Mr Sam Cohen told the Panel that I had, ‘maintained a vigorous campaign against [the advertiser] for some years’. Mr Cohen tells everyone that I have been on his case for years, as if I am a pest, or as if I am obsessed by his universe. He tries to turn this against me, when in fact, it points to Mr Sam Cohen breaking the law for years. I would not have pursued him, and I would have had nothing to pursue, if he had obeyed the law during all this time. The fact that each and every day of my life requires that I pursue Mr Cohen and his sham of a business, shows just how much there is to pursue. If it takes two years of my life, full time, along with assistance from my many helpers, administrators, researchers, and three lawyers, amounting to no less than eight hours every single day, seven days per week, shows just how much work there is to do, and how many lies I have to disprove, and how many victims I am supporting, and how many Codes and Sanctions and Orders and Acts that Mr Cohen is breaking. The vigorousness might point to my determination, but it more accurately points to the extent of Mr Cohen’s cheek, and total disregard for the law and for his clients, whose health and safety he has endangered, and whose money he has taken via what I alleged most earnestly is a scam. From my experience and from my findings and probings and having been a victim, I believe that IHRB is a complete total fraud. Mr Cohen says that I have something against him. Indeed, when I see such blatant abuse, what does he expect a citizen to do about it? Of course I am going to pursue him. Mind you, I have no powers. All I can do is report him to the authorities. They are stretched and busy, so their work takes time. I am patient. Yet in all this time, I have not seen Mr Cohen correct a single error. He just adds new lies and bold statements that are nothing more than a flagrant disregard for the law, and a hopeless disrespect for his victims and his clients.
2) The Panel’s report says in paragraph 18 that, ‘The advertiser stated that they had previously complied promptly and fully with a previous determination of the Panel’. A total lie told to the very people who know the facts. Mr Cohen snubbed the first set of Sanctions for over 12 months. The Panel then had to write to Mr Cohen and warn him that he is still in breach, and that the matter would be reported to the Secretary for the Department of Health. Even after that second warning, Mr Cohen ignored the Panel for another six months. That’s a total of 18 months, while people like me were reading misleading and unlawful ads, being lured by unverified statements that were not only deceptive but also had been Sanctioned and should not have been published. Eighteen months is not what I call ‘promptly and fully’. Besides, after 18 months, the retractions were not full. And the representations were still being made on the IHRB website, (and also in leaflets and brochures which the Panel has no powers over). So with the finest Cockney accent I can muster, let me say, ‘Do me a favour!’. [Correction: New evidence came to light to show that Mr Cohen ignored those Sanctions not for 18 months. He ignored them for 22 months. The new ads thereafter were worse than the first, so in fact, he never complied with the Sanctions. He changed the ads and accelerated his misconduct to a whole new level.]
3) The Panel’s report says in Paragraph 19 that, ‘The advertiser stated that they did “not promise to regrow hair on bald heads” but rather “offer assistance in seeking to impact upon the conditions causing hair loss, the improvement of the scalp, and improvement of dying hair into better texture”.’ So now, for the first time ever, Mr Sam Cohen is saying that he does not regrow hair on bald heads. On which kinds of heads does he grow hair? If he is unable to regrow hair on bald heads, then what has he been advertising all his life? He is the one who says that no other formula in the world can do what his can do. He told me that he has never failed. All his ads mention that he has grown people’s hair to the utmost satisfaction, while showing photos of bald men who regrew hair. Now he is saying that his job is that of avoiding hair loss, yet all his ads promise to re-grow our own hair. While typing this article on the 17th of November 2011, I visited IHRB’s website where we read Mr Cohen claiming that he can reverse hair loss and re-grow most of the hair lost over the past 3 or 4 years. If someone has lost hair, and that hair has not been on their head for four years, I think we can say that the person is bald on that area of their head. No hair for four years means walking around bald. Yet Mr Cohen lies and lies and lies yet again, this time to the Complaints Resolution Panel, saying that he did ‘not promise to regrow hair on bald heads’. How does the English language cope with such slimy contradiction?
Via his lawyer, Sam Cohen admits that he does not grow hair on bald heads. If that’s the case, then how come the banner on his website shows an animation of a bald head that becomes a full head of hair? Below are the first and the last images from the animation. Is this false advertising, or what!
In Paragraph 19 we also learn, for the first time ever, that Mr Cohen’s treatment contains dyes, in order to dye hair — meaning that his formula contains dyes (to change the colour of the hair), so as to make the hair and scalp appear darker, which creates an illusion that the hair is better, thicker, richer. In his submission to the Panel he spoke of ‘dying hair into better texture‘. This aspect is so amazing, that I am dedicating a special article to explain the significance of Mr Cohen’s claim. So please refer to this link for more information on this sensational revelation.
4) Also in paragraph 19, the Panel received responses from Mr Cohen who said that IHRB does not manufacture products. If that is the case, then why does he say in his ads and to his clients that he has the only special secret formula? Why are his bottles labelled with the phrase, ‘Specially formulated according to IHRB’s specifications’? How can he have Indian herbs and curries and natural extracts that are exclusively his, when now he is saying that nothing is his! I do wish he would make up his mind. Mr Cohen told the Penal that the products are provided by his chemists according to a medical practitioner’s prescription. If a medical practitioner issues a prescription, and a chemist dispenses, why does the world need IHRB and Sam Cohen? No chemist is permitted to interfere with a prescription, so how do those phantom secret herbs and extracts get into each bottle? Mr Cohen is misleading the Panel with these slimy statements. I have copies of emails written by Mr Cohen wherein he specifically states that he is the one who makes-up some of the topical solutions. Therefore, this makes him the manufacturer. More lies. More deception. He just has no respect for anyone or any authority.
5) Paragraph 21 of the Panel’s Determination shows how Mr Cohen was asked about his natural extracts and herbal preparations. His own pharmacist told me and other victims, in writing, that the extracts contained no therapeutic effect. Instead of proving that they exist and that they are effective, Mr Cohen simply tells the Panel that he has ‘thousands of satisfied customers and at least 65 testimonials, including satisfactory and satisfied comments from doctors, a medical centre, a priest and numerous professional and non-professional people.’ His latest ads in ‘Oz Weekly‘ break the law on several fronts, including the fact that he advertises, on the front page (a full page) an ad that includes testimonials from doctors. This is illegal. He also has these on his website, which is also illegal. And as for medical centres, well, that is out-and-out fraud, and it is explained in this article which exposes the lie and the deception surrounding the testimonial from the medical centre. Incidentally, some clients whom Mr Cohen has used as models in his ads, offering glowing testimonials, are now bald, yet he still, to this day, uses them as success-stories which evidently they are not.
6) Mr Cohen also tells the Panel that the testimonials were given freely and voluntarily by his clients. I have been told by some of his clients that Mr Cohen asked for the testimonials. So this is not the definition of ‘voluntarily’. And I have been told by IHRB’s clients that Mr Cohen offers free products and discounted products in exchange for testimonials. This is hardly the definition of ‘freely’. Bartering for testimonials, most of which are suspicious in their content, is illegal because this would make them paid testimonials. Besides, as the Panel discovered, none of the testimonials were ever documented and were not typical cases. And I know that some of the testimonials are from people who had used products that were not recommended by the TGA, and evidence is available to prove that some clients used products that were dangerous. Indeed, some client grew some hair, using bad non-approved dangerous products, which they could have purchased from any pharmacy, so why does he charge thousands of dollars for that? Here you can read about the outrageous testimonials. And here is a link to the suspicious testimonials.
7) In paragraph 22 Mr Cohen denies saying that he had treated people to the utmost satisfaction of every person he has treated. He said that those statements, although used by him to promote his products, were ‘not written by’ him but were ‘part of a commentary by another person’. Read this article and tell me if any of the alleged independent editorials could have ever been anything more than self-promoting advertorials written by IHRB, and never written by any journalist or reporter. Just take a peek and see what we have to contend with when it comes to handling Mr Cohen and his endless lies.
8) In paragraph 23 we read that Mr Sam Cohen tells the Panel that he assesses his clients before he sells them anything, to ensure that the treatment provided is appropriate. This was not true in my case, and in many cases reported to me. He just looked at my head, touched my hair for two seconds with his fingers, and sold me prescription-only medications without a prescription. This is dangerous and illegal, and does not constitute any form of an ‘assessment’.
9) In Paragraph 25 Mr Cohen admits that he uses Finasteride and Minoxidil to block the ‘balding gene’. No-one knows if there is a balding gene, but nonetheless, here is Mr Cohen admitting that he blocks DHT through Finasteride (which could cause permanent erectile disfunction) and Minoxidil. So there you have it. These products are readily available on the market. So why is Mr Cohen claiming to be the guru when these two products (along with the dangerous and non-approved Loniten found during the Police raid) are the products that are achieving the results for his clients. Why is he charging thousands of dollars for products available on the market for a tiny tiny tiny fraction of the astronomical unconscionable fees he is charging, while lying about his supposed secret herbs and curries which his pharmacists say do not exist — and of the liquid that did exist, one pharmacist only used it for only one month, and stopped using it, saying that it had no therapeutic effect and no active ingredient and caused problems.
10) Then in paragraph 27 Mr Cohen denied making statements about the safety of Minoxidil for pregnant women or those with a heart condition. Why then were there claims against him by women, one of whom extracted a refund from Mr Cohen after her lawyer-boyfriend got involved, and another took the matter to the CTTT (Consumer, Trader and Tenancy Tribunal)? Here is an IHRB sad story about a woman with a heart condition. Here is a story about an IHRB client who was told that it is ok for pregnant women to use IHRB’s products.
11) At last we hear what Mr Samuel Cohen of the Institute of Hair Regrowth & Beauty means by a ‘guarantee’. In paragraph 29, he tells the Panel that his guarantee should be interpreted as him saying, ‘I guarantee that if I am not successful I will give you your money back.’ Two problems. Mr Cohen has never, in my case and the many cases I know about, admitted that he was not successful. Despite photographic evidence to the contrary, Mr Cohen insisted that my hair had grown back. He just will never admit that he has failed. And when he knows that his treatment is not working (because Minoxidil does not work in all cases) he will ask his clients to get a prescription (and in some cases he does not even bother with a prescription) for Loniten and Finasteride to ‘boost’ the hair growth; disregarding the health implications and serious risks. Besides, if one’s hair is boosted and grows, why does he want thousands of dollars for that? Anyone can go to their GP and obtain those medications (although my GP was smart and sent me to a specialist who refused to have anything to do with Loniten, which is not approved and dangerous). The second problem with Mr Cohen’s definition of his guarantee is that it conflicts with his tricky and misleading contract, which says that his guarantee relates to the ‘client’ not being satisfied. So he sells it on the basis that ‘client satisfaction’ determines the guarantee, and now he is telling the panel that it is all about him failing. But Sam Cohen would not admit to having failed in my case, and in the case of many who went to CTTT and who made statements to the Health Care Complaints Commission about IHRB’s commercial and medical misconduct.
12) Mr Sam Cohen refuses to admit to the Panel that his ads make mention of anything ‘scientific’. In paragraph 32 we read that Mr Cohen had argued that words such as ‘state of the art‘, ‘innovated’, and ‘improved’ were ‘not scientific terms or the provision of scientific information’. IHRB’s ads (including the new versions now doing the rounds) talk about ‘after 40 years of research’ and ‘this is a world’s first’. And that no other formula in the world can do what his can do. He talks about having ‘innovated’ and ‘developed’. If the expression ’40 years of research’ in the context of claims of hair regrowth do not refer to anything scientific, then pigs can fly.
13) Mr Cohen again tells the Panel in Paragraph 35 that clients are only treated after they obtain a prescription from their doctor. Hogwash. I walked in, paid $3700 and walked out with Schedule 2 and Schedule 4 medications without a prescription. This was illegal and irresponsible and dangerous and pathetic, and others have made similar statements to the authorities, and here is Mr Samuel Faraj Cohen lying to the Panel.
THE FUNNIEST BIT OF ALL
14) Here is the best and the funniest of all: Paragraph 37 tells us that Mr Sam Cohen argued that, ‘unlike the topical solutions and items for which a prescription is required, items such as shampoos are not therapeutic goods.’ Ok, I need an anti-hypertensive to calm my nerves right here. So now Sam-the-Man has blurted out the truth. His shampoo is not a therapeutic good. Which means it has no effect on the hair, which means it has no effect on the scalp, which means it has no effect at all. So why is it part of his contract — the contract that forces people to buy his useless detergent shampoo at exorbitant prices where IHRB sells its shampoo at $20 when a similar product at Woolworths sells for $1.03? If we use one bottle per month, that’s $240 versus $12.36 each year just for his useless detergent that he calls organic shampoo, which is not even organic. This revelation is just as absurd as the Minoxidil products that Sam Cohen sells for $900 when a local compounding pharmacy can retail them at $70? Why the price hike? Because Mr Cohen lies about injecting his secret herbs and spices which his pharmacists say were never injected. So now we know that Mr Cohen has told the Panel that his shampoo is not a therapeutic product, which means it is useless, which is what I have been saying for two years and two months. Of course Mr Cohen could say that his shampoo is gentle on the hair and helps to maintain good hygiene. Of all the manufacturers in the world, why do we need the Institute of Hair Regrowth & Beauty to import detergent from India or China? Besides, now is a good time to snap out of the delusion that the ‘I’ in ‘IHRB’ really refers to a real ‘institute’. This aspect of the joke is explored if you click here.
FINDINGS OF THE PANEL
Let us now review what the Complaints Resolution Panel said (my emphasis added) about each of the 12 breaches in its Determination of 16 November 2011, showing that, despite being Sanctioned once before, IHRB still failed to obey the laws. The findings start on page 5 of the Determination. Below we read excerpts of the advertising claims that the Panel said were in breach of the relevant sections of the Act and Codes:
As a preliminary matter, the Panel considered the argument of the advertiser that some of the words in the advertisements had been written by others, such as words found in testimonials and words found in “editorials” that were reproduced in the advertisements. The Panel noted that the original authorship of the words was not significant; to the extent that the words were reproduced in the advertisements, they were elements of the advertisements in the same way as words written by the advertiser.
An advertisement for therapeutic goods is defined in the Act to include “any statement, pictorial representation or design, however made, that is intended, whether directly or indirectly, to promote the use or supply of the goods.”
The Panel was satisfied that the advertisements that were the subject of the complaint were advertisements that promoted the use or supply of certain goods. The Panel noted that the advertisements referred explicitly to goods such as “topical and oral pharmaceutical products, natural extracts, and herbal preparations”, and “prescribed and/or non prescribed herbal tablets/capsules, minerals, and vitamins”. The Panel was also satisfied, based on the material before it, that, though it did not refer to them explicitly by name, the advertisements were advertisements that promoted the use or supply of “Saw Palmetto Complex”, “Prozcar [sic – Proscar] tablets”, “Loniten tablets”, and “Prescribed Topical Hair Regrowth Formula”.
The Panel noted that it was not relevant whether the advertiser was a sponsor of advertised therapeutic goods, or whether they manufactured those goods. The Panel considered whether or not the advertisements promoted the use or supply of the goods.
Therapeutic goods are defined in the Act to include goods that are represented in any way to be for therapeutic use. Therapeutic use is defined to include use in or in connection with influencing, inhibiting, or modifying a physiological process in persons.
The Panel was satisfied that the goods that were promoted by the advertisements were therapeutic goods. It is clear that hair loss or baldness of the kind referred to in the advertisements are physiological processes in persons, and that the advertised goods were represented to be for use in influencing, inhibiting, or modifying those physiological processes.
The Panel was therefore satisfied that the advertisements were advertisements for therapeutic goods.
The Panel noted that the advertiser had stated that the advertised goods (or at least some of them) were prepared by compounding chemists. The Panel noted that while goods so prepared are exempt from certain provisions of the Act and Regulations – primarily those relating to inclusion on the Register and to manufacturing, they are not exempt from the advertising provisions. The Panel was satisfied that the therapeutic goods promoted in the advertisements were either designated therapeutic goods or other therapeutic goods, so that the advertisements fell within the scope of regulation 42ZCAB of the Regulations. On this basis, the Panel was satisfied that the advertisements were advertisements about which complaints could properly be made to the Panel.
Section 42C of the Act makes it an offence to publish certain advertisements for therapeutic goods in specified media that does not have an approval number, or to publish an advertisement without its approval number, and through reference to the Regulations, applies to “advertisements for designated therapeutic goods published or inserted, or intended to be published or inserted, for valuable consideration, in specified media.” The Panel was satisfied that the print advertisements, but not the internet advertisement, were subject to section 42C of the Act and ought to have been approved and to have carried an approval number. The Panel noted that at least some of the therapeutic goods promoted in the print advertisements were designated therapeutic goods.
The print advertisements had not been approved and did not have an approval number. This aspect of the complaint was therefore justified.
Section 4(1)(b) of the Code requires that advertisements for therapeutic goods “contain correct and balanced statements only and claims which the sponsor has already verified.”
The complainant alleged that “none of the claims about the benefits of Saw Palmetto have been verified”, and stated that “we know from his pharmacists that these [natural extracts and herbal preparations] contain no therapeutic effect and no active ingredients”. The complainant also argued that the words “I have helped thousands of men, women, and children with genetic baldness re-grow their own natural hair back” breached this section of the Code.
The Panel was satisfied that all of the advertisements conveyed that the saw palmetto, natural extract, and herbal preparation products had therapeutic effects or could help those “with genetic baldness re-grow their own natural hair back. The advertiser did not provide evidence to support these representations. The Panel was therefore satisfied that these representations had not been verified, and breached section 4(1)(b) of the Code. This aspect of the complaint was therefore justified.
The Panel did not consider whether or not the claim that Mr Cohen was “a hairloss and replacement specialist for 36 years” had been verified.
Section 4(2)(a) of the Code prohibits representations that are “likely to arouse unwarranted and unrealistic expectations of product effectiveness”.
The complainant alleged that the words “I have achieved unparalleled results in re-growth of hair to the utmost satisfaction of every person I have treated” (which were reproduced from material said to be “editorials from independent journals”) breached this section of the Code. The complainant argued that he himself had not been satisfied to the utmost level. The complainant also referred to a testimonial which included the words, “I have tried many ‘hair treatments’ over the last 3 years, including Minoxidil and Chinese herbal remedies. But none of these helped my hair loss”. The complainant argued that these words, found in the website advertisement, also aroused unwarranted expectations in breach of section 4(2)(a) of the Code, and reiterated the allegation that the advertised saw palmetto, natural extract, and herbal preparation products had no therapeutic effects. The complainant also noted other testimonial material that included words such as “amazed” and “bewildered”.
The Panel noted the argument of the advertiser that the words in the testimonials and “editorials” were “not written by” the advertiser but that were “part of a commentary by another person”, or were “provided… freely and voluntarily.” As noted above, this argument does not address the alleged breaches of section 4(2)(a) of the Code. The inclusion of the words in the advertisement is the responsibility of the advertiser, and regardless of their original authorship the words are part of the advertisements in which they appear.
In the absence of any evidence from the advertiser, the Panel was satisfied that the advertisements contained representations that were likely to arouse unwarranted and unrealistic expectations of the effectiveness of the advertised products. These included the representations that the advertised products could aid in the regrowth of natural hair for those experiencing hair loss, could help with hair loss, or could be effective in cases where other therapeutic goods such as Minoxidil had not been effective. This aspect of the complaint was therefore justified.
Section 4(2)(c) of the Code prohibits representations that “mislead directly or by implication or through emphasis, comparisons, contrasts or omissions”.
The complainant argued that the advertisements were misleading by omission because they did not disclose that key areas of the scalp where hair loss had occurred would not benefit from the use of the advertised product. The complainant argued that the advertisements implied that hair could be restored where “needed”, when this would not generally be the case.
The complainant also argued that words such as “do lasers, high frequency machines and massages block the balding gene (DHT)? No!” and “are lasers and high frequency machines medically approved as a DHT blocker?” were misleading because “no one said that they do block DHT”. The Panel took the complainant to be arguing that these words were misleading because, in referring irrelevantly to DHT blocking, they implied that lasers and high frequency machines could not aid with hair loss.
The complainant also argued that the advertisements were misleading because they implied that “treatment is not on-going, but does not mention that hair will fall out again if medications are stopped.”
The Panel was satisfied that the advertisements clearly conveyed a representation that consumers could expect hair regrowth in any part of the scalp where hair loss had occurred, and omitted the fact (acknowledged by the advertiser) that hair regrowth would not occur in areas where hair follicles had died.
The Panel was satisfied that words such as “do lasers, high frequency machines and massages block the balding gene (DHT)? No!” and “are lasers and high frequency machines medically approved as a DHT blocker?” were misleading because they were claims about the efficacy of those other treatments for which the advertiser provided no supporting evidence.
The Panel agreed with the complainant that the advertisements implied that “treatment is not on-going”, and that regrowth caused by the advertised products would be permanent or at least long-lasting. The Panel was satisfied, based on the submission of the advertiser, that such an implication was misleading.
The advertisements therefore breached section 4(2)(c) of the Code. This aspect of the complaint was justified.
Section 4(2)(d) of the Code prohibits advertisements which “abuse the trust or exploit the lack of knowledge of consumers or contain language which could bring about fear or distress.”
The complainant alleged that the advertisements breached this section of the Code because of references to “the balding gene”, “blocking the balding gene (DHT)”, and “blocking DHT”. The Panel noted that, to the extent that there could be a “balding gene”, it is clearly not DHT or dihydrotestosterone, since DHT is a hormone and not a gene.
The Panel was satisfied that in referring to “blocking the balding gene”, and equating the “balding gene” with DHT, the advertisement abused the trust and exploited the lack of knowledge of consumers. This aspect of the complaint was therefore justified.
Section 4(2)(g) of the Code prohibits representations that therapeutic goods are “infallible, unfailing, magical, miraculous”, or that they are “a certain, guaranteed or sure cure”. Section 4(2)(h) of the Code prohibits advertisements for therapeutic goods that “contain any claim, statement or implication that it is effective in all cases of a condition”.
The Panel noted that several testimonials in the advertisements explicitly alluded to “performing miracles”. Moreover, the Panel noted that the advertisements included words such as “all others say ‘try ours, it may help’. No ‘ifs’ and ‘buts’ with us.” The Panel was of the view that such representations conveyed a clear implication that the advertised products would always be effective.
The Panel also noted that the website advertisement included words such as “he has since dealt with thousands of men, women, and children with every type of hair-loss problem”.
The Panel was satisfied that the advertisements overwhelmingly represented the advertised products to be unfailing and to be a certain, guaranteed, and sure cure for hair loss or baldness. The Panel was also satisfied that they represented the advertised products to be effective in all cases of hair loss. These aspects of the complaint were therefore justified.
Section 4(2)(i) of the Code prohibits representations that the goods advertised are completely safe, harmless, or free of side-effects. The Panel noted that the website advertisement included, as part of a testimonial, the words “all I did was use IHRB’s hygiene products and apply their prescribed ‘Topical Solution’ take their prescription and herb tablets and no side affects which is fantastic.” The Panel was satisfied that this advertisement therefore breached section 4(2)(i) of the Code. This aspect of the complaint was therefore justified.
Section 4(4) of the Code requires scientific information to be “presented in a manner that is accurate, balanced and not misleading”, and requires that publication of scientific research results should “identify the researcher and financial sponsor of the research.” The Panel was satisfied that representations in the advertisements about “blocking the balding gene (DHT)”, and similar representations, amounted to scientific information. As already noted, the Panel was satisfied that to the extent that there could be a “balding gene”, it is clearly not DHT or dihydrotestosterone, since DHT is a hormone and not a gene.
The Panel was satisfied that in referring to “blocking the balding gene”, and equating the “balding gene” with DHT, the advertisement presented scientific information in manner that was not accurate and was misleading. This aspect of the complaint was therefore justified.
Section 4(5) of the Code requires that comparisons made in advertisements must be balanced and must not be misleading or likely to be misleading, and prohibits the inclusion in advertisements of comparisons that “imply that the therapeutic goods, or classes of therapeutic goods, with which comparison is made, are harmful or ineffectual.” The Panel was satisfied that the advertisements made clear comparisons with other therapeutic goods or classes of therapeutic goods, and represented the advertised products to be capable of working in cases where all other therapeutic goods or classes of therapeutic goods had failed. The Panel was satisfied that the advertisements also represented other therapeutic goods to be ineffectual. The Panel therefore found this aspect of the complaint justified.
Section 4(7) of the Code requires that testimonials included in advertisements for therapeutic goods “must be documented, genuine, not misleading and illustrate typical cases only.” On the basis of the material before it, the Panel was satisfied that the advertisements contained testimonials that could not be considered typical, including testimonials showing dramatic results in very short periods of time. Moreover, the advertiser provided no evidence, that the testimonials in the advertisement were all documented, genuine, and illustrative typical cases only. This aspect of the complaint was therefore found to be justified.
The advertisements ought to have included the words “always read the label” (section 6(3)(c) of the Code), and the words “use only as directed” and “if symptoms persist see your doctor/healthcare professional” (section 6(3)(d) of the Code). The advertisements did not include an approval number or these mandatory statements. These aspects of the complaint were therefore justified.
DETAILS OF THE SANCTIONS
The Panel requests Institute of Hair Regrowth and Beauty Pty Ltd, in accordance with subregulation 42ZCAI(1) of the Therapeutic Goods Regulations 1990:
a) to withdraw the advertisement from further publication;
b) to withdraw any representations, including representations that are implied because of a lack of qualifying information, that the advertised products are free of side effects, that they are effective in all cases of hair loss or for all sufferers of hair loss, that they can aid in hair regrowth on all parts of the scalp, that they can aid in the regrowth of natural hair for those experiencing hair loss, or could be effective in cases where other therapeutic goods such as Minoxidil had not been effective, together with any representations that DHT is “the balding gene” or that the advertised products block the balding gene;
c) to withdraw any representations that the advertised natural and herbal products can help people with genetic baldness regrow their own natural hair;
d) not to use the representations in (b) and (c) above in any other advertisement;
e) 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;
f) to arrange for publication in all publications where the print advertisements were published of retractions in the form of, and in accordance with, the conditions set out in the attachment to this determination;
g) to arrange for publication on the website www.ihrb.com of a retraction in the form of, and in accordance with, the conditions set out in the attachment to this determination; and, 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.
