In late 2011, the the Complaints Resolution Panel (CRP) received complaints about Swisse's advertising slogan - "You'll feel better on Swisse" - and other representations including that particular products were "clinically proven" and "independently tested".

CRP provided Swisse with an opportunity to make submissions regarding the complaints.  The CRP found that Swisse had breached the Therapeutic Goods Advertising Code and requested that Swisse withdraw its advertisements and specific representations.

Swisse sought judicial review of the CRP's decision.  In Federal Court proceedings, Swisse claimed that it was denied natural justice or procedural fairness on the following basis:

  • the complaints were not sufficiently clear to alert Swisse to the matters which the CRP was considering; and / or
  • adverse findings were made despite the relevant allegations not being made in the complaints (i.e. they were considered of the CRP's own volition).

Justice Tracey of the Federal Court agreed.

The Court held that CRP had failed to notify Swisse that it intended to consider Code contraventions in addition to those which were the subject of the original complaint, and invite Swisse to make further submissions. 

The Court ordered that the CRP's determination be set aside and the matter be remitted to the CRP for further hearing and determination.

The Federal Court judgment provides a useful guide as to the protocols which must be followed in relation to a CRP complaint, and represents the first time a complainant has sought and succeeded in obtaining judicial review in this context.