Written by Alyce Evans and Jennifer Tutty, Principal
When it comes to influencers and paid promotions, there have been a number of new restrictions imposed on what can and cannot be done in social media advertising.
If you’re an influencer posting about your favourite skincare, beauty products, sunscreen, vitamin supplements, cosmetics or other medical or health related products, then the latest wave of legal changes may apply to you.
The TGA Code
In January 2022, the Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021, Schedule 1 (TGA Code) came into force. Its purpose is to establish requirements for advertisements (directed to the public) of therapeutic goods, to protect the public from false or misleading advertising and the risk this can pose to public health.
If an influencer is posting content related to therapeutic goods on their social media pages, and this content is classed as ‘advertising’, then the influencer must follow the rules in the TGA Code.
To clarify, this TGA Code does not ban influencers from promoting therapeutic goods. It also does not mean that influencers can no longer receive payment, free products or gifts in exchange for promoting therapeutic goods.
What the TGA Code does do is provide strict rules, which must be complied with if advertising these types of goods.
What is an ‘Advertisement’ Under the TGA Code
Advertisements relating to therapeutic goods are regulated by the Therapeutic Goods Act 1989 (Cth) (Act) and the TGA Code. According to the Department of Health, Therapeutic Goods Administration (TGA), “a social media post that promotes the use or supply of therapeutic goods is an advertisement.”
Therefore, if you are promoting ‘therapeutic goods’ via social media (or any other form of media), you are legally obliged to comply with the Act and the Code.
To determine whether a post is or is not an advertisement, it is necessary to refer to the Act’s definition of “advertise”.
KEY: Advertising, in relation to therapeutic goods, includes making any statement, pictorial representation or design that is intended, whether directly or indirectly, to promote the use or supply of the goods.
Who is an “advertiser” under the TGA Code?
Importantly, “advertiser” is defined in the TGA Code as any person (or entity) who:
(a) Advertises, by any means, therapeutic goods; or
(b) Causes the advertising, by any means, of therapeutic goods.
This means that a brand or creative agency, who engages an influencer to promote therapeutic goods, may also be captured by this definition, as they have “caused the advertising” of the goods.
What is a Therapeutic Good?
When it comes to the definition of “therapeutic goods”, even lawyers can get tangled up in the legislation and what this does and does not include. “Therapeutic goods” can include a wide range of items such as medicines, certain beauty and health products, cosmetics, vitamins, supplements, sunscreen, essential oils and more.
Fortunately, the TGA has developed an Australian Register of Therapeutic Goods (ARTG).
If you about are planning to advertise a product on social media, which you think may be a therapeutic good, we recommend using the search function on the ARTG to find out.
If you are still unsure, the next step would be to contact a lawyer or the TGA. With significant penalties for those who get it wrong, it is much better to be safe than sorry.
When Do the Changes Take Effect?
Although the TGA Code officially commenced on the 1 January 2022, it provides a 6-month transition period until 30 June 2022.
This means that all advertisements must comply with the TGA Code from 1 July 2022. Any advertisements, which were previously posted but do not align with the requirements under the new TGA Code, must be removed before 1 July 2022.
How to Comply with the TGA Code
In general, the TGA Code requires any advertising of therapeutic goods to be conducted in a manner that promotes the safe and responsible use of the product, is socially responsible and does not mislead or deceive people. Advertisements must also not take advantage of consumers.
Importantly, social media advertisements for therapeutic goods must meet all of the requirements outlined in the TGA Code.
Testimonials and Endorsements
One of the biggest changes for influencers, which will be enforced by the new TGA Code, is that influencers can no longer make testimonials about therapeutic goods in advertisements. This is because influencers are involved in the “marketing” of the goods, and the TGA Code expressly prohibits such people from providing testimonials about the goods.
What this means is that influencers who are advertising therapeutic goods, can no longer speak about their experience using those goods.
If you are engaged by a business to promote therapeutic goods, you cannot then share your personal experience about using these therapeutic goods on social media. This is a ‘testimonial’ and a breach of the TGA Code. It doesn’t matter whether these testimonials are based on your honest opinion or experience with the product, they are prohibited.
This rule also applies whether you are given money or free products. For example, if a company sends you free essential oils, sunscreen or vitamins to try, and those are listed on the Australian Register of Therapeutic Goods as therapeutic goods, you cannot talk about your experience with these goods on social media.
Notably, this restriction also applies to current and former health professionals and practitioners.
What is the reason for this new restriction?
This change brings the advertising of therapeutic goods on social media into alignment with pre-existing requirements for other forms of advertising.
Additionally, The TGA has recognised that social media influencers have the ability to influence the “beliefs, attitudes, preferences and behaviours” of their followers. Therefore, any comments made about therapeutic goods may impact the buying habits of their followers. The TGA states on their website that “therapeutic goods should be chosen on the basis of clinical needs, not through the persuasion of influencers.”
What about testimonials made before 1 July 2022?
Any testimonials made prior to the new TGA Code must be taken down before 1 July 2022. If they aren’t, the person responsible will be in breach of the TGA Code. Make sure to go through your social media posts and remove any breaching posts before this date.
What is an ‘endorsement’?
There has been some confusion about the difference between ‘testimonials’, which are prohibited for the advertisement of therapeutic goods and ‘endorsements’, which are not.
On their website, the TGA describes an endorsement as follows: “An endorsement is made where a person, or corporation, sanctions (approves of) a particular therapeutic good but there is no indication as to the outcome(s) from the use of the good by any individual. For example, ‘Company X recommends Brand Y disinfectant’”
There is a fine line between a testimonial and an endorsement. Do not share your personal experience with using a therapeutic good you are promoting, as this is a ‘testimonial’. If you are unsure where your planned promotion of a product falls, we recommend consulting a lawyer or the TGA for advice.
Mandatory Statements, such as Health Warnings
If an advertisement of therapeutic goods facilitates the direct purchase or supply of the good, it must include certain mandatory statements, such as health warnings.
This means that if you are providing a link to purchase the products in your promotion of them, you may need to include certain mandatory statements.
The mandatory statements required and how they must be included in the promotion is outlined in the Code. These requirements differ depending on the type of therapeutic goods being advertised.
To avoid any issues, do not provide links to purchase therapeutic goods in your advertisements of them. Stay away from ‘links in bio’, hyperlinks to the website where the goods can be purchased and swipe up or other links to purchase in Instagram stories.
The TGA Code also provides strict rules around publishing the price of therapeutic goods.
Price information about therapeutic goods can only be published or disseminated by retail pharmacies, agents acting on behalf of retail pharmacies (such as pharmacy marketing groups) or dispensing doctors.
Manufacturers, distributors and sponsors of medicines cannot publish or disseminate price information. Health practitioners and professionals are also prohibited from doing so. This means that influencers on social media cannot publish or share price information about therapeutic goods, even if they have qualifications or are practitioners in the health industry.
Do not discuss the price of a therapeutic good in any social media advertisements. For example, if you are comparing products, do not discuss or write the actual prices.
Understand the Approved Purpose
Advertisements must not promote the therapeutic good for any purpose other than the approved purpose provided by the TGA. The approved purpose for therapeutic goods can be found in the Australian Register of Therapeutic Goods. For exempt goods not on the ARTG, the goods must not be promoted for a purpose other than those in the documentation provided with the good.
Effectively, you cannot say that you use a product for X purpose when the TGA has listed the approved purpose as Y. You can only mention the ‘approved purpose’. As previously noted, you cannot talk about whether your experience with the product does or does not align with the approved purpose as this may be a testimonial.
Use the ARTG to determine the approved purpose of the goods you are advertising.
What Happens if You Don’t Comply with the Code?
The promotion of therapeutic goods is taken very seriously. If you breach the TGA Code, the TGA can:
– Direct you to take down the advertisement; and/or
– Bring criminal and civil legal claims against you.
There are also significant fines and penalties that can apply.
Third Party Posts and Comments
Whether you’re a business or an influencer, if you run or manage a social media page (including a Facebook page, website, Instagram, Twitter, TikTok, discussion forum, or otherwise), you are responsible for the content on those pages.
You are also responsible for any third party comments made on those pages. This means that if someone makes a comment on your page in relation to therapeutic goods, you are responsible for ensuring that comment complies with the TGA Code.
To avoid breaching the TGA Code through the actions of third parties, the TGA advises businesses create an ‘acceptable use policy’ on their social media pages.
Such a policy should warn third parties (i.e. commenters) that any comments which do not comply with the Code will be taken down from the page. It could also include a warning that parties who make such comments will be removed from the page or blocked from making further comments.
Businesses should also publish ‘corrective information’ as soon as they become aware that third parties are posting misinformation on their social media pages. Be careful to ensure that the corrective information complies with the advertising requirements, if it falls within the classification of an advertisement.
Written by Alyce Evans and Jennifer Tutty, Principal
The following resources and links provide useful information for those looking to learn more about the new TGA Code.
If you have any legal questions relating to influencers, social media, advertising or the Therapeutic Goods Act or new Code, please contact us through our online form or via email at firstname.lastname@example.org.
Other Recent Codes that Affect Influencer Advertising
In February 2021, the Australian Association of National Advertisers (AANA) introduced a new Code of Ethics. Under the new Code, any influencer posting content as marketing for another brand, company or individual, and receiving a benefit for doing so, must clearly label that content as advertising. For more information on this, check out our blog: #Ad: The New Rules of Social Media Advertising That Influencers Need to Know.
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.