Assoc Prof Ken Harvey and his School of Public Health students
(left to right: Mal Vickers, Kithmini Cooray, Mary Malek, Ken Harvey)
- Mal Vickers, Analysis of old and new advertising complaint systems
- Mary Malek, TGA consultation on “low risk” products
- Kithmini Cooray, Bright Brains (Bacopa Monnieri) TGA complaint
Mal Vickers provided an analysis of therapeutic goods advertising breaches; a league table of companies with the most Code violations and failure of the Therapeutic Goods Administration (TGA) to enforce the law. Mary Malek showed how the TGA disregarded public submissions to its consultations. Kithmini Cooray presented a complaint about the unethical marketing of ‘Bright Brains’, a herbal product targeting ambitious students, about which the TGA said they achieved compliance. Ken Harvey raised grave concerns about the TGA’s new complaint system that appears to put the interests of industry ahead of consumers.
The audience did not agree that the ongoing advertising of ‘Bright Brains’, illustrated by Kithmini, had achieved compliance with the Therapeutic Goods Advertising Code 2015. In short, they disagreed with the TGA outcome statement about this complaint.
Which led to an interesting discussion on the TGA’s two key performance indicators (KPIs); time to action a complaint and time to close a complaint.
If ‘low priority’ complaints are closed by merely sending an educational letter to the advertiser (usually on the same day the complaint is received) then there is no difficulty in meeting time-based KPIs.
Equally, higher priority complaints (such as Bright Brains above) can easily meet their KPIs if they are closed by stating that compliance has been achieved when it has not. Presumably this complaint was closed by an assurance given by the advertiser, but without checking to see if compliance was actually achieved.
KPI’s can also be more easily met if no information is provided on why some alleged Code violations were accepted but others were not.
The Department of Health has disparaged the old Complaint Resolution Panel (CRP) on the grounds that it was slow. They promised the new TGA complaint system would be faster.
The CRP sent every complaint they judged to breach the Code (broke the law) to the advertiser for a considered response. They published on their web site a full determination on the claims alleged to breach the Code, often running into many pages. Yes, this process took time, but the end result was transparent and educational for advertisers and complainants. Contrast this, with current TGA published complaint ‘outcomes’.
These results raise questions about the competence of TGA staff assessing complaints and/or suggest they are far too willing to accept assurance of compliance from advertisers, or minor amendments, as an easy way of closing the complaint to meet their KPIs.
This “tick and flick” approach is convenient for the TGA and industry and but it is appalling consumer protection. It also disregards the purpose of the Therapeutic Goods Advertising Code 2015 and the Therapeutic Goods Act 1989 which the TGA is meant to uphold.
The critique by Commissioner Haynes on regulators of the financial services industry is equally applicable to the TGA. A failure to enforce the law undermines the authority of the regulator whose fundamental responsibility is to do just that. It also encourages others to break the law, leading to a race to the bottom.by