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					09/173 DECISION Meeting 12 May 2009 Complaint 09/173 Complainant: A. Gilbey Advertisement: Body Magnetix Limited Complaint: The website advertisement for the: “New Generation MAGNE-SLEEP New Zealand’s Better Magnetic Underlay” Was headed: “wake up to a PAIN FREE day!” Claims on the second page said: “AMAZING DRUG-FREE RELIEF FROM PROBLEMS & PAIN CAUSED BY ARTHRITIS LOWER BACK PAIN ASTHMA & ALLERGIES ADHD SKIN CONDITIONS FIBROMYALGIA DIABETES SCIATICA GOUT MUSCLE SPASMS LEG CRAMPS BONE FRACTURES INSOMNIA STRESS & NERVOUS DISORDERS SPORTS INJURIES, SPRAINS & STRAINS CHRONIC FATIGUE SYNDROME CARPAL TUNNEL SYNDROME HEADACHE & MIGRAINE DEPRESSION LUPUS …and many other medical conditions. …all without pills and potions!”

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Complainant, A.Gilby, said: “Type: Website Where: http://www.bodyznagnetix.co.nz/?gclid-CLemw8vYmZkCFRFMagod8EaBCQ whilst browsing the internet during my much hour, I found this advert for MAGNESleep magnetic underblankets Who: Nicky and Mary Launder Product: MAGNE-Sleep Complaint On the website for this product, it is claimed that a MAGNE-Sleep blanket can offer: AMAZING DRUG-FREE RELIEF FROM PROBLEMS & PAIN CAUSED BY ARTHRITIS LOWER BACK PAIN ASTHMA & ALLERGIES ADHD SKIN CONDITIONS FIBROMYALGIA DIABETES SCIATICA GOUT MUSCLE SPASMS LEG CRAMPS BONE FRACTURES INSOMNIA STRESS & NERVOUS DISORDERS SPORTS INJURIES, SPRAINS & STRAINS CHRONIC FATIGUE SYNDROME CARPAL TUNNEL SYNDROME HEADACHE & MIGRAINE DEPRESSION LUPUS And many other medical conditions. All without pills and potions! As far as I am aware, there is no evidence to support this possibility and there is no underlying scientic rationale. As such, it is untruthful and misleading.” The Chairman ruled that the following provisions were relevant: Therapeutic Products Advertising Code PRINCIPLE 2 Advertisements must be truthful, balanced and not misleading. Claims must be valid and have been substantiated. PRINCIPLE 3 Advertisements must observe a high standard of social responsibility. PART B2 ADVERTISING MEDICAL DEVICES TO CONSUMERS Requirement 2 Advertisements must contain the mandatory information to encourage responsible use. Requirement 4

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Advertisements must not directly nor by implication, omission, ambiguity, exaggerated claim or comparison: (a) mislead or deceive, or be likely to mislead or deceive; or (b) abuse trust, or exploit lack of knowledge; or R4.1 An advertisement must not: ii) contain any claim, statement or implication that the product is effective in all cases of a condition; iii) contain any claim, statement or implication that it is infallible, unfailing, magical, miraculous, or that it is a certain, guaranteed or sure R4.2 Comparative advertising Comparative advertising must be balanced and must not be misleading, or likely to be misleading, either about the product advertised or any therapeutic products, or classes of therapeutic products, with which comparison is made. Comparative advertisements must not be disparaging but must be factual, fair and already substantiated, referenced to the source and reflective of the body of available evidence. Requirement 5 Advertisements must not unduly glamorise products or services, or prey on the vulnerability of particular audiences.

The Advertiser, Body Magnetix Limited, said: “In response to your letter re a complaint lodged by A. Gilbey. We have worked closely with TAPS and Medsafe for the past 10 years and believe we have been the most moderate of those advertising magnetic therapy, in line with the principles and policies of our sector. The key words relevant to A. Gilbey's complaint are "drug-free relief from problems and pain caused by". We are not suggesting cure of specific ailments, rather our product can offer easing of the pain and problems these conditions can create. For example, arthritis may be an incurable condition, but a sufferer can enjoy relief from the pain and restricted movement caused by arthritis. This is the purpose of our product and we seek to ensure our customers are aware of the fact that we do not offer cures, nor treatment of the conditions listed. A. Gilbey states that he is unaware of evidence supporting this possibility and that "there is no underlying scientic (sic) rationale". While few double blind studies have been conducted on magnetic therapy (and A. Gilbey, as an academic, should be well aware of the costly reasons why this is so) many doctors and scientists have undertaken study and analysis of magnetic therapy - a great number of these studies and their conclusions are readily available through an Internet search. One may

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spend considerable time interpreting these items and disregarding the blatantly commercial - but it is clear that many responsible authorities have undertaken valid research and published worthwhile conclusions. We appreciate that the type of product we market may be considered, by some, to be "alternative". There are many products that fall within that category, some of which are effective, others that are not. In support of our own marketing claims we offer, in addition to the above, a 10-year history of Magne-Sleep in New Zealand and a significant amount of anecdotal evidence. In many Instances, the anecdotal comments from our customers far exceed any claims or offers we may make. (It is, perhaps, notable that we offer our customers a 90-day moneyback guarantee if they are dissatisfied with our product - a "return rate" approximating 5% over 10 years indicates that our product may well offer some of the help we describe.) Most relevant, however, is the issue of A. Gilbey's statement that our words are "untruthful" and "misleading". We believe, in consideration of the guidelines we work within, that this is an opinion that we must refute. Our constant and consistent use of words such as "help ease", "can" as a qualifying word, "relief", etc., in all our communications indicates our desire to work responsibility with the Codes administered by yourselves and by Therapeutic authorities. We would hope that A. Gilbey is also pursuing other marketers of similar products, some of whom make far stronger, more definitive claims than we choose to use. We thank you for the opportunity to respond to this complaint As you will be aware, we have from time to time brought to your attention the actions of others who we believe exceed your guidelines. We take seriously our role in the New Zealand market and believe we act responsibility towards our customers and toward our obligations as a Medsafe-registered marketer of magnetic therapy.” Deliberation The Complaints Board read the relevant correspondence and the advertisement. It noted Complainant, A. Gilbey, was of the view that the advertisement made “untruthful and misleading” claims where it said “Amazing Drug-Free Relief From Problems & Pain Caused By Arthritis …Depression Lupus” and many other medical conditions. In the Complainant’s view there was “no evidence to support this possibility and there is no underlying scientific rational”. The Chairman directed the Complaints Board to consider the complaint with reference to the Therapeutic Products Advertising Code, Principles 2 and 3, also Requirements 4 (a) and 4(b), and Requirement 5. The Complaints Board agreed Part B2, Requirement 2, and R4.1(ii), (iii) and R4.2 were not applicable to the matter before it and thereby no rulings were required under those provisions. The task before the Complaints Board was to ascertain whether the advertisement was truthful, balanced and not misleading to the consumer. It confirmed the requirement for an advertiser to satisfactorily substantiate all and any claims which were challenged by complainants.

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The Complaints Board reiterated its long-held position that it was not an arbiter of scientific fact, and its focus was confined to the content of advertisements and whether or not that content met the requirements of the Advertising Codes. Principle 3 required the Complaints Board to determine whether the advertisement met a high standard of social responsibility, and this was of particular importance in advertisements which contained claims regarding the health and physical well-being of the consumer. The Complaints Board noted the Advertiser’s advice where it said they had worked closely with TAPS and Medsafe for the past 10 years and they “believed they had been the most moderate of those advertising magnetic therapy, in line with the principles and policies of our sector.” The Complaints Board also noted that there was no indication that the advertisement before it had received TAPS approval. Thereby it made the recommendation that all advertisements for the advertised product, particularly those that included therapeutic claims, be submitted to TAPS prior to publication. It noted the main claim in question by A. Gilbey was "Amazing drug-free relief from problems and pain caused by" and then an extensive list of ailments and medical conditions. It noted the Advertiser’s advice that it was not, in its advertisement, suggesting cure of specific ailments, rather that use of their product would assist by easing the pain and the problems associated with those conditions. The Complaints Board noted the Advertiser’s explanation where it said: “For example, arthritis may be an incurable condition, but a sufferer can enjoy relief from the pain and restricted movement caused by arthritis.” It also noted that there was a 90 – day moneyback guarantee on purchase of the product, and the return rate ad been approximately 5% over 10 years. However, taking into account the vulnerability of the potential consumer for the product advertised, the Complaints Board was unanimously of the view, that the advertisement over-glamourised the product, and made exaggerated claims, which had not been substantiated. In this respect the Complaints Board ruled that the advertisement was in breach of Principle 2 and Requirement 5 of the Code. Also, in the Complaints Board’s view, the advertisement did not observe a high standard of social responsibility. Accordingly, the Complaints Board said the advertisement did not observe the high standard of social responsibility required by Principle 3 and it ruled that it was in breach of that provision. Turning to Requirement 4 (a) and (b), the Complaints Board said the advertisement contained exaggerated claims about the properties of the product, which were likely to mislead the consumer and exploit the consumer’s lack of knowledge, and thereby it was in breach of these provisions. Having made the above observations, the Complaints Board ruled to uphold the complaint. Decision: Complaint Upheld


				
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