Australian-first with corporation fined $127,500 for unlawful advertising

04 Oct 2017

In an Australian-first, Wellness Enterprises Pty Limited, which traded as Australian Male Hormone Clinic, has been fined $127,500 plus costs after being found guilty and convicted of 17 charges related to unlawful advertising of regulated health services.

Charges brought by the Australian Health Practitioner Regulation Agency (AHPRA) followed advertisements the business published in newspapers around Australia between February and August 2017 for treatment of testosterone deficiency.

The full page ‘advertorial’ style advertisements made a number of claims about the benefits of treatment, including increased energy, focus, masculinity and strength, and ability to satisfy sexual partners. AHPRA challenged the validity of the claims citing best available evidence.

In the Downing Centre Local Court in Sydney on 3 October, the corporation was found guilty and convicted on 17 charges. Magistrate Atkinson cited the seriousness of the offences in fining the corporation $7,500 on each charge, totalling $127,500. The corporation was also ordered to pay court costs of $3,000 and professional costs up to $3,000.

This is the first time that a corporation, not an individual health practitioner, has been convicted following advertising charges brought by AHPRA under section 133 of the National Law¹.

AHPRA CEO Mr Martin Fletcher welcomed the court’s decision.

‘Our primary objective is to protect the public. 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. AHPRA and the National Boards will continue to take action against unlawful advertising in the best interests of all consumers of regulated health services,’ he said.

Wellness Enterprises Pty Limited was incorporated on 13 April 2016. It was placed into voluntary liquidation on 12 September 2017.

What can AHPRA do?

Section 133 of the National Law states that a person must not advertise a regulated health service or a business that provides a regulated health service, in a way that:

• is false, misleading or deceptive or is likely to be misleading or deceptive, or
• offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer, or
• uses testimonials or purported testimonials about the service or business, or
• creates an unreasonable expectation of beneficial treatment, or
• directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

A person or a business providing a regulated health service, whose advertising breaches the National Law, may be prosecuted and ordered by a court to pay a $5,000 penalty per offence (for an individual) or a $10,000 penalty per offence (for a body corporate).

When a registered health practitioner has breached the advertising requirements a National Board may also decide that this raises concern about the practitioner’s conduct. Action under the National Law can include placing restrictions on an individual health practitioner’s registration which may affect their ability to advertise their services.

‘Regulated health service’ means a service provided by, or usually provided by, a health practitioner, as defined in the National Law. The advertising provisions of the National Law cover the advertising of a regulated health service, or a business that provides a regulated health service.

For more information

• Lodge an online enquiry form
• For registration enquiries: 1300 419 495 (within Australia) +61 3 9275 9009 (overseas callers)
• For media enquiries: (03) 8708 9200

¹Health Practitioner Regulation National Law, as in force in each state and territory (the National Law).