The Therapeutic Goods Administration (TGA), part of the Department of Health, has initiated proceedings in the Federal Court of Australia (Federal Court) in response to Oxymed Australia Pty Ltd and its sole director, Mr Malcolm Hooper’s alleged unlawful advertising of hyperbaric oxygen therapy chambers.
The TGA alleges the advertising promoted the devices for the treatment of serious diseases and medical conditions, including coronavirus (COVID-19), cancer, post-traumatic stress disorder and autism spectrum disorders.
The TGA recently issued Oxymed Australia with five infringement notices totalling $63,000 in relation to alleged unlawful advertising.
At that time, the TGA also informed Oxymed Australia that it must immediately remove all advertisements in breach of the Therapeutic Goods Act 1989 (the Act) and warned court action may be initiated if the advertisements were not removed and the notices were not paid.
Oxymed Australia did not pay the infringement notices, and the alleged unlawful advertising continued to be present on the Oxymed Australia website after the notices were issued.
The TGA therefore initiated court proceedings to obtain an injunction restraining Oxymed Australia and Mr Hooper (the Respondents) from advertising hyperbaric oxygen therapy chambers. The TGA further seeks orders that the Respondents pay penalties for alleged contraventions of the Act.
“The TGA continues to actively pursue those responsible for unlawful advertising in order to protect some of the most vulnerable Australians-those people living with serious diseases and conditions,” Adj. Professor John Skerritt, Deputy Secretary of the Department of Health, said.
“We will not tolerate the actions of any business which tries to take advantage of people, particularly during these very stressful times, and the TGA will continue to ensure the health and wellbeing of Australians is its highest priority.”
Following the commencement of proceedings, the website which is the subject of the proceedings was taken down by the Respondents, without any admission of liability.
The Federal Court has also made orders, by consent of the parties, that the website is not to be reinstated without the prior written consent of the TGA. The Federal Court’s orders can be accessed on the Commonwealth Courts Portal.
References to such diseases and medical conditions are prohibited and restricted representations under the Act. References to COVID-19 are of particular concern to the TGA given the current pandemic, and the TGA has recently published a warning to advertisers and consumers about illegal advertising relating to COVID-19.