Nexdius Pty Ltd and Minister for Health

The Administrative Appeals Tribunal considered an appeal by Nexdius Pty Ltd against a decision by the Minister for Health to refuse approval for a television advertisement for a sunscreen product. The dispute centred on whether the advertisement complied with the Therapeutic Goods Advertising Code, specifically concerning claims made about the product's ability to allow for vitamin D production.

The Tribunal was required to determine whether the advertisement made correct and balanced statements, whether claims were verified by the sponsor, and whether the language used could exploit consumer trust or knowledge. A key issue was whether the advertisement's claim that the sunscreen allowed users to obtain sunlight necessary for vitamin D production was substantiated and presented in a way that did not mislead consumers.

The Tribunal found that while some scientific data suggests that limited sun exposure can facilitate vitamin D production, the advertisement's claim was not sufficiently balanced or verified in the context of the Therapeutic Goods Advertising Code. Although expert evidence indicated that the product allowed for increased UVB transmittance compared to other sunscreens, and that this could be physiologically significant for vitamin D production, the Tribunal concluded that the advertisement did not meet the requirements of clause 4(5) of the Code. Consequently, the Tribunal affirmed the decision to refuse approval for the advertisement.