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THERAPEUTIC GOODS ACT 1989 - SECT 42DL

Advertising offences--general

             (1)  A person commits an offence if:

                     (a)  the person:

                              (i)  advertises, by any means, therapeutic goods; or

                             (ii)  causes the advertising, by any means, of therapeutic goods; and

                     (b)  subsection (5), (6), (7), (8), (9), (10), (11) or (12) applies to the advertisement; and

                     (c)  either:

                              (i)  the use of the goods in reliance on the advertisement has resulted in, will result in, or is likely to result in, harm or injury to any person; or

                             (ii)  the use of the goods in reliance on the advertisement, if the goods were so used, would result in, or would be likely to result in, harm or injury to any person.

Penalty:  Imprisonment for 5 years or 4,000 penalty units, or both.

             (2)  A person commits an offence if:

                     (a)  the person:

                              (i)  advertises, by any means, therapeutic goods; or

                             (ii)  causes the advertising, by any means, of therapeutic goods; and

                     (b)  subsection (5), (6), (7), (8), (9), (10), (11) or (12) applies to the advertisement.

Penalty:  Imprisonment for 12 months or 1,000 penalty units, or both.

             (3)  A person commits an offence if:

                     (a)  the person:

                              (i)  advertises, by any means, therapeutic goods; or

                             (ii)  causes the advertising, by any means, of therapeutic goods; and

                     (b)  subsection (5), (6), (7), (8), (9), (10), (11) or (12) applies to the advertisement.

Penalty:  100 penalty units.

             (4)  An offence against subsection (3) is an offence of strict liability.

Contravening provisions

             (5)  This subsection applies to the advertisement if it contains a prohibited representation (whether in express terms or by necessary implication) about the goods and either of the following applies:

                     (a)  no permission under section 42DK is in force in relation to the prohibited representation;

                     (b)  a permission under section 42DK is in force in relation to the prohibited representation but the use of the prohibited representation is not in accordance with the permission or a condition of the permission.

             (6)  This subsection applies to the advertisement if it does not contain a required representation about the goods.

             (7)  This subsection applies to the advertisement if it contains a restricted representation (whether in express terms or by necessary implication) and either of the following applies:

                     (a)  neither an approval under section 42DF nor a permission under section 42DK is in force in relation to the restricted representation;

                     (b)  an approval under section 42DF or a permission under section 42DK is in force in relation to the restricted representation but the use of the restricted representation is not in accordance with the approval or permission or a condition of the approval or permission.

             (8)  This subsection applies to the advertisement if it contains a reference to this Act, other than in a statement of the registration number, listing number or device number of the goods.

             (9)  This subsection applies to the advertisement if it contains a statement, pictorial representation or design suggesting or implying the goods have been recommended or approved by or on behalf of a government or government authority (including a foreign government or foreign government authority), other than:

                     (a)  a statement of the availability of the goods as a pharmaceutical benefit; or

                     (b)  a statement, pictorial representation or design authorised or required by a government or government authority (not including a foreign government or foreign government authority); or

                     (c)  a statement, pictorial representation or design prescribed by the regulations for the purposes of this paragraph.

           (10)  This subsection applies to the advertisement if it refers to substances, or goods containing substances, included in Schedule 3, 4 or 8 to the current Poisons Standard but not in Appendix H of the current Poisons Standard, other than a reference authorised or required by a government or government authority (not including a foreign government or foreign government authority).

           (11)  This subsection applies to the advertisement if it refers to a biological, other than a reference authorised or required by a government or government authority (not including a foreign government or foreign government authority).

           (12)  This subsection applies to the advertisement if it refers to therapeutic goods that are not entered in the Register and that are prescribed by the regulations for the purposes of this subsection, other than a reference authorised or required by a government or government authority (not including a foreign government or foreign government authority).

Continuing offences

           (13)  A person who contravenes subsection (1), (2) or (3) commits a separate offence in respect of each day (including a day of a conviction for the offence or any later day) during which the contravention continues.

           (14)  The maximum penalty for each day that an offence against subsection (1), (2) or (3) continues is 10% of the maximum pecuniary penalty that can be imposed in respect of that offence.



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