A business that claimed its testosterone treatments would increase ‘masculinity’ and the ability to satisfy sexual partners has been fined $127,500 after Australia’s health practitioner regulator took the clinic to court for misleading advertisements of health services.
The Australian Health Practitioner Regulation Agency (AHPRA) confirmed on Wednesday the Downing Centre Local Court had imposed penalties against Wellness Enterprises Pty Ltd, trading as Australian Male Hormone Clinic, over full-page ‘advertorial’ promotional materials that the company ran in national newspapers between February and August of this year.
The ads were for the company’s treatment of testosterone deficiency and made the claim that males undertaking the treatment could expect increased focus, energy, “masculinity” and ability to satisfy sexual partners.
AHPRA has the ability to bring action against an individual or corporation if it advertises a “regulated health service or business” in a way that is false or misleading or creates an “unreasonable expectation of beneficial treatment”.
Since the national law providing for this was established in 2010, the regulator has only secured penalties against individuals. This is the first time a business has been fined for breaching the law.
In this case, the regulator was able to argue that, based off the best available evidence about the claims made by Australian Male Hormone Clinic, the validity of representations made in the ads could be challenged.
The business was found guilty of engaging in 17 counts of unlawful advertising of regulated health services, and ordered to pay a fine of $127,500 plus court costs. The company entered liquidation on September 26, and liquidator DVT Group did not respond to SmartCompany‘s requests for comment prior to publication.
In a statement, AHPRA chief executive Martin Fletcher said his organisation would continue to take action against advertisers to ensure promotions acted in the best interests of customers.
“Advertising can heavily influence a patient’s decision-making around their healthcare needs and information in advertising must be accurate and based on acceptable evidence,” he said.
Medical claims often challenged in ads, but penalties difficult
This is not the first time a private health provider has faced court over claims about its treatments: in 2015, the Australian Competition and Consumer Commission (ACCC) successfully brought action against erectile dysfunction treatment provider Advanced Medical Institute (AMI), alleging it made unsubstantiated medical claims when signing up clients to treatment.
The Federal Court found AMI guilty of unconscionable conduct over claims its salespeople made to potential customers, including that untreated premature ejaculation could lead to penis shrinkage.
The consumer watchdog can launch court action over suspected misleading or deceptive conduct in advertising across all business sectors, but this is the first time the health regulator has been able to use the health practitioner code to secure penalties against a business.
Dominique Egan, a health and aged care partner at TressCox Lawyers, says health practitioners providing regulated services must abide by section 133 of the Health Practitioner Regulation National Law (2009), which AHPRA has used in this case to claim the clinic’s promotions were misleading.
“Advertising of regulated health services often involves the advertising of products and/or therapeutic goods, and individuals and businesses must take care to comply with all relevant legislation,” Egan says.
Best practice is for business owners in this space to familiarise themselves with their obligations under the law, with Egan recommending companies seek legal advice on any proposed advertising before its release.
Advertising expert and University of Melbourne Academic Lauren Rosewarne says advertisements about treatments for sexual performance issues often generate numerous complaints to the Advertising Standards Board, but testing the veracity of claims made within these ads falls well outside of the board’s jurisdiction.
“While advertisements for sexual performance products are often complained about on taste and decency grounds, the ASB don’t investigate whether such advertisements make promises that cannot be substantiated,” she says.
“Their focus is on adjudicating complaints about advertisements while balancing industry and community standards.”