Legal historians will recall anti-trust litigation in the 1980s and 1990s over the global 'vitamin cartel', with criticism of anticompetitive practices and problematical claims regarding the efficacy or scientific basis of particular products. In 2001 for example the European Commission imposed a 462m euro penalty on Hoffman-La Roche (the world's largest vitamin producer) and 296m euro penalty on BASF (the second-biggest maker of vitamins), discussed in 'The Great Global Vitamins Cartels' by John Connor. In 2006 the Federal Court approved a $30.5 million settlement in Australia's first ever cartel class action. Although 'supplement' vendors are offering products that may be beneficial they are commercial enterprises and thus susceptible to the temptation to engage in hyperbole or be deliberately misleading.
Perspectives are provided in 'Commercialism, choice and consumer protection: regulation of complementary medicines in Australia' by Harvey, Korczak, Marron & Newgreen in 188(1) Medical Journal of Australia (2008) 21-25, Vitamania: Vitamins in American Culture (New Jersey: Rutgers University Press 1996) by Rima Apple, 'Dietary Supplements: Can the Law Control the Hype' by Iona Kaiser in 37 Houston Law Review (2000) 1249-1277, 'The effectiveness of popular, non-prescription weight loss supplements' by Egger, Cameron-Smith & Stanton in 171(11) Medical Journal of Australia (1999) 604-608 and 'Truth and Consequences: The Perils of Half-Truths and Unsubstantiated Health Claims for Dietary Supplements' by Vladeck in 19(1) Journal of Public Policy & Marketing (2000) 132-138.
The Advertiser reports that Swisse has taken action in the Federal Court hearing in an effort to overturn a Therapeutic Products Advertising Complaints Resolution Panel ban (under the Therapeutic Goods Regulations 1990) on particular advertising. That action follows a succession of complaints to the Panel - some by Swisse competitors - and consequent withdrawal of advertising (eg that noted here).
The Panel, which hears complaints about the promotion of products within the ambit of the TGA (Australia's counterpart to the FDA) -
gave the vitamin company until March 19 to withdraw its ads for 11 products and stop using the slogan, "You'll feel better on Swisse", saying there was no proof to back the claim. ...Twice as effectively?
The TGACRP investigated Swisse in January, finding many products offered were misleading, had not been verified, or aroused unwarranted expectations.
The panel ordered Swisse to pull any ad that claims products are "clinically proven" or "independently tested," as well as its "Tired? Stressed? You'll feel better on Swisse" tagline.
A 16-page report detailing the rulings was published on the TGACRP website last week, revealing the Swisse advertisements had breached several sections of the Therapeutic Goods Advertising Code and make claims about health benefits that were not substantiated. These included claims:WOMEN'S Ultivite, plugged by Kruger, can offer benefits in relation to tiredness or stress.
MEN'S Ultivite can benefit memory function or heart health.
ULTIBOOST Sleep will result in a good sleep and that users will wake up "fresh".
ULTIBOOST Wild Krill Oil provides benefits for joint and heart health in ordinary consumers - and is absorbed twice as effectively as other fish oil capsules.
The Advertiser goes on to state that -
The investigation was launched after the panel received two anonymous complaints about TV advertisements that ran for much of 2011.Unsurprisingly, the paper notes that
Swisse did not provide evidence to support many claims but did present one report to the panel, which proved the Women's Ultivite product helped improve symptoms of pre-menstrual syndrome by 50 per cent. But the same study indicated that a non-active placebo also improved symptoms by 28 per cent. Swisse argued in the Federal Court in Melbourne on Friday the panel did not follow due process in reaching its verdict.
It argued the panel had banned the promotion of products - such as its Ultiboost Wild Krill Oil plugged by Brown - when the product wasn't included in the initial complaints of misleading advertising. The case was adjourned until Wednesday, with the panel agreeing to remove its findings and notices about the complaints from its website.
"Swisse has expressed its strong disagreement at the recent decision of the Complaints Resolutions Panel," a company spokesman said.Vigorous contest in legal channels is of course much easier if you've been making lots and lots of money selling Wild Krill Oil and similar treats. After a busy day marking assignments - and more assignments - I haven't yet had time to go in search of the oil of the non-Wild Krill. Somehow I doubt that there are many domestic, tame or otherwise non-Wild Krill hereabouts.
"Swisse considers that the review process leading to the decision was fundamentally flawed and is contesting the findings vigorously through appropriate channels."
Swisse's site proclaims that -
Swisse has two key obsessions and both are about putting you, the consumer, first.
The first obsession is scientific validation and benchmark standards. We’re obsessed with research and clinical studies. The second is seeking feedback from our consumers and practitioners. Our biggest thrill is derived from consumer feedback, which affirms our mission to make you healthier and happier.
You will notice that Swisse formulae are constantly updated to keep us at the forefront of medical research and deliver maximum benefits to you. Swisse Ultivites are one of the only multivitamin antioxidant formulae in the world to have been shown to deliver therapeutic benefits in a rigorous, double-blind, placebo-controlled clinical study. Increased stamina, lower stress levels, relief from symptoms of nervous tension and a feeling of wellbeing are the real benefits that consumers report. Swisse is one of the best health insurance policies for disease prevention and a Happier and Healthier Life ....
When you buy Swisse, you’re investing in products with scientific validation and proven results.
