False claims of virus
protection result in a fine for Lorna Jane
What better time to market “anti-virus activewear” than
in the midst of a COVID-19 pandemic?
Lorna Jane is a leading Australian women’s activewear
brand which sells a range of sports bras, tights, leggings,
tank tops and gym clothes.
It made three virus protection claims:
- Its “anti-virus activewear” prevented and protected
against infectious diseases.
- It launched its “LJ Shield exclusive technology”.
- It had worked for two years to develop a
“chemical-free treatment that when applied to activewear,
protects wearers against viruses and bacteria”.
Advertising activewear with virus protection gives the
garments a therapeutic use. According to the Therapeutic
Goods Administration (the TGA), this make the garments a
therapeutic good. Therapeutic goods are subject to the
Therapeutic Goods Act 1989 (the Act) and the
Therapeutic Goods Advertising Code (No. 2) 2018 (the
How Lorna Jane breached the
Therapeutic Goods Act and the Advertising Code
In its media release, the TGA relied upon three breaches
of the Act and the Code as reasons to issue three
infringement notices totalling $39,960 to Lorna Jane. They
- “The advertisement referred to therapeutic goods
that were not included in the Australian Register of
Therapeutic Goods (ARTG). This is required before they
can be lawfully supplied or advertised in Australia.”
- “Under the Therapeutic Goods Act 1989, any
references to COVID-19 (and related terms) in the
promotion of these types of goods are restricted
representations. A restricted representation refers to a
serious form of a disease, condition, ailment or defect.
The use of restricted representations in advertisements
for therapeutic goods is unlawful without a prior formal
approval or permission from the TGA.”
- “It is also a breach of the Therapeutic Goods
Advertising Code (No. 2) 2018 to promote a
therapeutic good as being safe, harmless or without
The TGA concluded: “These advertisements are of
significant concern given the current pandemic.”
The TGA had warned advertisers about illegal advertising
relating to COVID-19 on 24 March 2020. This is the full text
of the warning:
TGA issues warning about illegal
advertising relating to COVID-19
Warning to consumers
As a consumer, it is important to be aware of false and
misleading advertising. Unfortunately, some people are
taking advantage of the current situation by advertising
products that claim to prevent or cure COVID-19.
Claims being made include unregistered products that
'kill COVID-19', air purifiers that help fight the
coronavirus, complementary medicines that prevent the virus,
and a medical device that treats a number of serious
diseases including COVID-19, HIV AIDs and cancer.
In Australia, the advertising of therapeutic goods is
regulated by the TGA and must meet certain requirements.
If you are suspicious of the claims being made about a
product, including those advertised as preventing or curing
COVID-19, you can provide information to us via the online
advertising complaint form.
Warning to advertisers
The TGA will take action in relation to the illegal
advertising of therapeutic products. Advertisers are
- products which are represented to be for therapeutic
use are regulated as therapeutic goods (with a few
- therapeutic goods must be included in the Australian
Register of Therapeutic Goods, unless they are subject
to an exemption, approval or authority under therapeutic
- criminal offence and civil penalty provisions apply
to illegal advertising of therapeutic goods
- the TGA is monitoring non-compliance, particularly
in relation to the advertising of products that claim to
prevent or cure COVID-19 and will take action in
relation to any advertisements that do not meet the
requirements, including those that seek to mislead
- this is in line with the previous warning about
advertising and the novel coronavirus.
Consequences of breaking the law
The Therapeutic Goods Act 1989 provides for a range
of criminal offences, some of which are punishable by up to
5 years’ imprisonment and attract fines of up to $840,000
for an individual or $4.2 million for a body corporate.
Further, the legislation provides for civil penalties
involving a penalty amount of up to $1.05 million for an
individual or $10.5 million for a body corporate. In a
civil penalty case brought by the TGA (Secretary,
Department of Health v Peptide Clinics Australia Pty Ltd
 FCA 1107) the Federal Court of Australia awarded $10
million in civil penalties in relation to contraventions of
the advertising provisions under the Act.
About the TGA
The TGA is part of the Australian Government Department of
Health and is responsible for regulating the advertising of
therapeutic goods by administrating the Therapeutic Goods
Act 1989, the Therapeutic Goods Regulations 1990
and the Therapeutic Goods Advertising Code (No.2) 2018.
The Therapeutic Goods Advertising Code is specific
legislation that applies to the advertising of therapeutic
goods over and above the Australian Consumer Law,
which regulates advertising generally.
The TGA takes seriously any claims about diseases,
conditions, ailments or defects that require diagnosis or
treatment or supervision by a suitably qualified health
professional. These claims are called restricted
representations and require formal approval by the TGA
before they can be used in advertising, on labels, and so
forth. Approval will be given only if the claims are
And if the claims are for products, they must be
registered as therapeutic goods before the products can be
advertised or labelled.
The Code has specific requirements for the advertising of
particular therapeutic goods, namely complementary
medicines, analgesics, vitamins and minerals, weight
management products and sunscreens. The fact that garments
are not specifically mentioned may explain why Lorna Jane
did not receive a more substantial fine.
Marketing Commentary By
Michael Field from EvettField Partners
Any new marketing campaign or product development,
particularly where expansive claims are being made must be
verified and pass an internal regulatory review process and
approval prior to the launch to protect both the company and
In this instance, the internal review process looks like
it went missing!
No–one pointed out that it was not allowed for garments
to be advertised as virus-free without approval by the TGA,
the health authority.
Lorna Jane may have got off lightly, as a ~$40,000
penalty is small fry when it comes to marketing budgets and
tiny compared to the likely financial benefit Lorna Jane
obtained by deceiving their customers into thinking they
were protecting against COVID-19 by wearing its activewear
when they were not.
It makes me wonder if companies are being deliberately
lax on their processes when it comes to making product
claims, as the penalties like this are relatively low
compared to the potential upside of a successful marketing
But what consideration is given to loss of brand
equity and the resulting loss in consumer confidence
regarding the brand’s claims when held to account by a
regulatory authority for breaching the law?
Business leaders and marketing managers need to step up
and behave more responsibly when it comes to making product
claims, particularly where unsubstantiated health claims are
being made without any evidence or regard for the consumer.