Swisse Vitamins vs Complaint Resolution Panel
https://www.comcourts.gov.au/file/Federal/P/VID225/2012/actions
The judgement is not yet posted on the above link but it is available here.
See also: http://www.heraldsun.com.au/ipad/swisse-in-front-in-court-stoush/story-fn6bfkm6-1226367397271 and today’s ABC Radio AM, “Swisse denied fair treatment by complaints panel“.
Essentially, Judge Richard Tracy agreed that the Complaint Resolation Panel (CRP) had caused procedural unfairness by determining additional matters not included in the original complaints without giving Swisse the chance to respond (see below). As a result the Judge ordered the matters should go back to the CRP for reconsideration. In addition, Swisse were awarded costs.
In my opinion, reconsideration by the CRP of the original complaints and the additional matters raised (together with the Swisse response) is likely to result in most of the original determinations being reiterated.
I also note that Swisse have now toned down some of the advertising claims originally complained about.
Meanwhile additional complaints about Swisse promotional activities have been submitted to the TGA CRP and the CHC CRC. See also, Swisse Vitamins highlights the failure of industry self-regulation.
For comments on Swisse marketing (including the use of celebrities) see: “Pill peddlers Swisse deploy Delta ahead of ‘clinically proven’ court ruling“.
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I spent Friday, March 23, 2012 at the Federal Court in Melbourne with a Latrobe Law student (Jared Hyams) listening to the arguments in Swisse Vitamins v Complaint Resolution Panel (CRP), see:
https://www.comcourts.gov.au/file/Federal/P/VID225/2012/actions
and
http://www.optuszoo.com.au/news/business/perth-now/tga-says-you-dont-feel-better-on-swisse/612125
Ian Waller SC for Swisse argued that the CRP had not followed due process insofar as they considered additional matters that had not been specified in the two complaints received and/or had not been clearly specified in the “textual particulars” of the complaints. As a result Swisse had not been given an opportunity to respond to those issues before the CRP issued their determination. They wanted the entire CRP determination to be set aside and the complaints to be reheard by a reconstituted CRP with members who had not been involved in the original determination.
The legal arguments centred on Therapeutic Goods Regulations 1990 42ZCAH
Dealing with matters not specified in complaint
(1) The Panel may deal with a matter that is not mentioned in a complaint if it is satisfied that the advertisement or generic information to which the complaint relates may contravene the Act, these Regulations or the Therapeutic Goods Advertising Code in some other way.
(2) If the Panel decides to deal with a matter under subregulation (1), the Panel must give written notice of its decision to the person apparently responsible.
(3) The notice must:
(a) give details of the matter not mentioned in the complaint and the possible contravention of the Act, these Regulations or the Therapeutic Goods Advertising Code that are to be dealt with by the Panel; and
(b) invite the person apparently responsible to send written submissions to the Panel, together with any supporting Documents.
Of the 11 advertisements under consideration, counsel for the CRP argued that most determinations were made in response to issues clearly raised by the complainants and these determinations should stand. However, counsel for Swisse did not agree, taking issue with the CRP’s interpretation of certain “textual particulars”. It was conceded by counsel for the CRP that the determination on some products may not have followed 42ZCAH(3). The CRP was willing to look at these matters afresh but not with a reconstituted Panel.
Justice Richard Tracy reserved his decision to a date to be fixed.
The CRP gave an undertaking to the court that its determination would remain removed from its website until a judgement is delivered. Swisse, meanwhile, continues to promote (and defend) the products under question, see:
http://www.swisse.com/health-hub/swisse-news/transparency-in-defence-of-the-natural-health-industry
by 
