Retailers of Adjustable Beds and Mobility Products Fined for Misleading Conduct
Tuesday 23 February 2016 @ 9.24 a.m. | Legal Research | Trade & Commerce
As reported in a recent ACCC Media Release, it has been revealed that retailers Clews Holdings Pty Ltd (Clews), which supplies Seniors Plus products, and D Burnz Investments Pty Ltd (D Burnz), which supplies Better Living Australia products, have each paid $20,400 in penalties following the issue of two infringement notices to each company by the Australian Competition and Consumer Commission (ACCC).
Background
The ACCC issued the infringement notices because it had reasonable grounds to believe that Clews and D Burnz had each made false or misleading representations about their adjustable beds and associated mobility equipment, in breach of the Australian Consumer Law (the ACL) [Sch 2 to the Competition and Consumer Act 2010 (Cth)].
Role of the TGA
The Therapeutic Goods Administration (TGA), which forms part of the Australian Government’s Department of Health, is responsible for regulating the supply, import, export, manufacturing and advertising of therapeutic goods.
The TGA regulates therapeutic goods through pre-market assessment, post-market monitoring and enforcement of standards, licensing of Australian manufacturers and verifying overseas manufacturers' compliance with the same standards as their Australian counterparts.
Businesses wishing to promote and sell products with claimed therapeutic uses generally must have these products entered in the Australian Register of Therapeutic Goods (ARTG) prior to supply and use in Australia. Inclusion in the ARTG does not mean that the TGA endorses or sponsors the use of any kind of product.
Seniors Plus branded goods
From at least July 2015, brochures for Seniors Plus branded goods used the Commonwealth Coat of Arms accompanied by the words:
- “Australian Government”;
- “Department of Health and Ageing”;
- “Therapeutic Goods Administration”; and
- the words “TGA Approved products”
were used elsewhere in the brochures. The ACCC considered that the brochures represented that the goods were sponsored or approved by the TGA, when this was not the case.
Also, a logo containing an image of a kangaroo and four ticks accompanied by the words “Australian Standard and Design” was included in the brochures for Seniors Plus products. The ACCC considered that this represented that the products complied with an Australian Design Standard when in fact no such standard existed.
Better Living Australia branded goods
From at least July 2015, brochures for Better Living Australia branded goods contained an express representation that Better Living Australia branded adjustable massaging beds had been awarded a certificate by the TGA, when this was not the case. The brochures also contained a representation that motors in these adjustable massaging beds were made in Germany, when in fact they were made in China.
Ms Rickard said:
“False representations that therapeutic products have TGA or other government approval can mislead elderly or other vulnerable consumers when they are choosing to make what can be very significant purchases. Businesses should be aware that entry of a product in the Australian Register of Therapeutic Goods does not allow them to represent that those products are approved or sponsored by the TGA or the Commonwealth Government, and that such representations are likely to breach the Australian Consumer Law.”
Action by the ACCC
The Deputy Chair of the ACCC, Delia Rickard said:
“The ACCC’s action forms part of a broader investigation into a number of businesses selling adjustable beds and mobility equipment, often to elderly and potentially vulnerable consumers.”
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Sources:
Two retailers of adjustable beds and mobility products pay $20,400 in penalties – ACCC Release MR 8/16
