Brochure entitled “Effective wet or dry. The winning strategy for infected wounds”.
Complaint by ConvaTec Ltd that an advertising brochure issued by Johnson & Johnson Medical Ltd entitled “Effective wet or dry. The winning strategy for infected wounds.” (JJM1066) was in breach of Clause 3.4 of the Code of Practice in that the brochure made exaggerated claims which could be misleading. They also complained that using ‘Carboflex’ for comparison in the brochure was unfair and also in breach of Clause 3.4.
The Committee considered the response by Johnson & Johnson Medical Ltd that ConvaTec Ltd had not raised this particular issue with them and had not therefore met their obligations under Clause 5.1. of The Code. They noted that ConvaTec Ltd already had some references related to Actisorb Silver 220 from previous correspondence between the two companies and considered ConvaTec Ltd should have given Johnson & Johnson Medical Ltd more opportunity to provide additional evidence to support the claims made for Actisorb Silver 220 in the advertising brochure. They accept the Johnson & Johnson Medical Ltd claim that appropriate references would have been made available on request.
This complaint was therefore rejected by the Committee.
The Committee reflected that this issue was another phase in a wider dispute between the two companies and that the second part of the complaint was therefore eligible for consideration.
They agreed that the naming of Carboflex in a comparison of adsorption of bacteria was unfairly misleading and disparaging of this product in that the manufacturers (ConvaTec Ltd) make no claims of this property for the product.
The Committee therefore concluded that Johnson & Johnson Medical Ltd are in breach of Clause 3.4 of the code and upheld this complaint. They request that Johnson & Johnson to cease using this brochure in its present form.
Complaint adjudicated on 2 July 2001
Appeal by Johnson & Johnson Ltd
Johnson & Medical Ltd lodged an appeal against these opinions which was considered by a panel from the Complaints Committee with the following result:
Johnson & Johnson Medical Ltd made the point that the complaint should not have been reviewed by the Complaints Committee because ConvaTec Ltd had not given them the opportunity to respond. The opinion was that once a complaint has been formally lodged, the officers of the SDMA must follow the due procedure and have no authority to dismiss a complaint.
This issue was discussed at length by the original Committee before deciding to review the complaint. They concluded that sufficient time had elapsed for the parties to have resolved the matter and withdrawn the complaint. The Committee felt that complaints should be dealt with in as timely a manner as possible in order to uphold the spirit of the Code of Practice but noted the comments in the original findings indicating that ConvaTec Ltd could have given Johnson & Johnson Medical Ltd more opportunity to respond.
With regard to the Johnson & Johnson Medical Ltd breach of Clause 3.4, the Appeal Committee considered the additional evidence provided by Johnson & Johnson Medical Ltd but concluded that the ConvaTec Ltd literature presented did not make claims of bacterial absorption or anti-microbial activity for Carboflex and therefore did not materially influence the original decision.
The Appeal Committee felt that Johnson & Johnson Medical Ltd were in breach of Clause 3.4 by unjustifiably singling out 'Carboflex' from 'other charcoal dressings' where there was no demonstrable difference shown in the spectrum of activity diagram in the Johnson & Johnson Medical Ltd brochure.
The Appeal Committee therefore upheld the original decision in respect of this complaint.
Appeal considered on 10 September 2001