Secretary, Department of Health v Peptide Clinics Australia Pty Ltd [2019] FCA 1107

FEDERAL COURT OF AUSTRALIA

Secretary, Department of Health v Peptide Clinics Australia Pty Ltd [2019] FCA 1107 File number: NSD 2213 of 2018

Judge: JAGOT J

Date of judgment: 23 July 2019

Catchwords: HEALTH LAW – whether the respondent contravened s 42DBL of the Therapeutic Goods Act 1989 (Cth) (the TG Act) by advertising a therapeutic good – whether the respondent contravened s 42DMA of the TG Act by advertising a therapeutic good which does not comply with s 4 of the Therapeutic Goods Advertising Code 2015 and s 10 of the Therapeutic Goods Advertising Code (No 2) 2018 – alleged contraventions found PENALTY – amount of pecuniary penalty to be imposed pursuant to s 42Y of TG Act – course of conduct principle – totality principle – general deterrence – penalty applied

Legislation: Crimes Act 1914 (Cth) s 4AA Therapeutic Goods Act 1989 (Cth) ss 3, 4, 42AA, 42DD, 42DF, 42DK, 42DLB, 42DMA, 42Y(2), 42YA Therapeutic Goods Advertising Code 2015 (Cth) ss 4(2)(c), 4(2)(i), 4(2)(f), 4(4) Therapeutic Goods Advertising Code (No 2) 2018 (Cth) ss 10(c), 10(d)(i)

Cases cited: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (No 2) [2005] FCA 254; (2005) 215 ALR 281 Australian Competition and Consumer Commission v Woolworths Limited [2016] FCA 44 Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39; (2010) 269 ALR 1 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 20