Ineffective "retractions": How to make false claims and get away with it

During the past week, bemused TV viewers in Australia may have noticed a brief TV commercial relating to a retraction by EASE-a-Cold.

I say "bemused" because it's an ad you could easily "see" several times without taking in much of it and certainly without understanding the context.

In my view, that's perfectly understandable. I think it's an ad that has been deliberately designed NOT to be effective.

First, the TVC features a single screen of tiny writing in red on white - one of the most difficult colour combinations to read on TV. Even on a 46-inch, high-definition screen, I could not read the text, especially not in the time for which it remained on screen. Second, it has a voice-over delivered in the least engaging way possible - monotonous, emotionless and perfunctory, the same way the disclaimers are read at the end of political advertising.

The whole impression is of an ad designed to meet the minimum requirements to comply with some kind of external order... and nothing more.

The facts are that Pharmacare Laboratories has been found by the relevant tribunal to have made an unlawful, misleading and unverified claim about the therapeutic benefits of EASE-a-Cold. The company was ordered not only to withdraw the false and misleading claims, but also to publish a retraction.

But the EASE-a-Cold case is actually a great illustration of how easy it is to make false and misleading claims about therapeutic effects in Australia and, effectively, get away with it. It is especially disturbing, as the product had been the subject of a previous adverse finding when earlier claims about its ingredients - zinc, echinacea and vitamin C - were also ordered withdrawn.

Problem is, although Tribunals and Courts sometimes specify that misleading claims should be "retracted", in my experience they rarely specify the form of that retraction. Even if they do make some stipulation about the content, quantity and scheduling of "corrective" ads in print or on websites (as it has done in this case), tribunals don't usually get into specifying the executional style of TV ads.

In TV advertising or advertorials, claims about health or weight loss benefits of non-prescription products are never presented in an unemotional and disengaged style. Rather, they use tactics designed to maximise attention, appeal and persuasion: attractive presenters, compelling images and carefully-chosen language.

That's what makes these mandated retractions so farcical. They set out to attract minimal attention, to go unnoticed, to leave no lasting impression in the mind of those exposed to them. So they stand little or no chance of "undoing" the effects of the original false representations.

It's time for tribunals like the Therapeutic Products Advertising Complaints Resolution Panel - and even the Federal Court - to get serious about retractions and do much, much more to specify the style and context in which the corrective messages should be delivered.