Cat Media Pty Limited Carotino (Australia) Pty Limited Pharm-a-Care Laboratories Pty Limited and Minister for Health and Aged Care

This matter came before the court concerning the cancellation of the listing of therapeutic goods, specifically a product known as FatBlaster MAX. The parties involved were Cat Media Pty Limited, Carotino (Australia) Pty Limited, Pharm-a-Care Laboratories Pty Limited, and the Minister for Health and Aged Care. The dispute centred on whether the label of FatBlaster MAX contained indications for fat loss and/or weight loss, and whether a statement made in the application for its listing was false or misleading in a material particular, or if the product had been advertised by the sponsor for fat loss and/or weight loss.

The court was required to determine the meaning of "contains" in relation to the product's label and whether the label, or any advertising, indicated fat loss or weight loss. Furthermore, the court had to assess whether any statement made in connection with the application for listing was false or misleading in a material particular, and whether the product was advertised by its sponsor for fat loss or weight loss. These determinations were to be made in light of the provisions of section 30 of the Therapeutic Goods Act, which outlines grounds for cancellation of registration or listing.

The court applied the ordinary and reasonable consumer test to assess whether the product's label contained indications or advertisements for fat loss and/or weight loss. This approach was supported by the Explanatory Memorandum to the Therapeutic Goods Amendment (2017 Measures No 1) Bill, which clarified that labels must only contain permitted indications and be consistent with those listed in the Register. In the absence of specific authority on the advertising aspect, the court agreed with the parties that this too should be assessed by reference to the ordinary and reasonable consumer. The court drew upon the principles established in *Bullivant’s Natural Health Products Pty Ltd and Minister for Health and Family Service*, which considered the effect on reasonable members of the class and whether products had the ability to mislead or confuse a reasonable adult member of the community. The decision under review was affirmed.