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What does the new TGA code for Influencer Marketing mean for your business?

July 31, 2022

There’s been a lot of misinformation surrounding the new Therapeutic Good Administration’s (TGA) Advertising Code

What exactly does it mean for brands and creators?

The TGA Advertising Code regulates how advertisers can promote therapeutic goods and has updated its regulations to align influencers with other advertising platforms. 

Its scope is related to “therapeutic claims only”. 

While most within our industry do not necessarily provide health care products, our industry does provide products and services that activate changes in the skin and body, and this is where we need to be careful about how we word these claims. 

Here we explain what constitutes a therapeutic claim and guidelines on how to avoid breaching the new TGA guidelines.

Under the TGA social media advertising guide, “a social media post that promotes the use or supply of therapeutic goods is an advertisement.”

“Whether an advertisement for therapeutic goods appears on social media or in any other media, the advertisement must comply with therapeutic goods legislation.”

The Australian Influencer Marketing Council (AIMCO) clarified, via a statement that the updated TGA code ‘does not ban promotion’ of therapeutic goods but aligns the rules for influencers with the longstanding rules for other advertising formats of therapeutic goods.

What are therapeutic goods?

First and foremost, it is important to understand what is considered a therapeutic good according to the TGA.

Therapeutic goods range from medicines or medical devices and have a health effect on the human body. 

Other types of products, such as cosmetics, also become subject to TGA regulations if they are represented for therapeutic use

For example, a skin needling device that makes claims such as stimulating collagen production, or a skin care product that assists in detoxification.

Claims such as ‘removes toxins’, ‘fade age spots, ‘relieves pain’, ‘aids sugar metabolism’, and ‘reduces inflammation in the body are all therapeutic use claims.

In Australia, TGA approval is required for:

  • Sunscreens
  • Supplements
  • Vitamins
  • Protein powders
  • Medicated shampoos
  • Some acne and skin-lightening products

What’s not allowed under the updated TGA Advertising Code?

Influencers will no longer be able to provide Testimonials on therapeutic goods if they have been:

  • Paid to do so
  • Gifted a free item

What is allowed?

  • Genuine un-paid testimonials are permitted online
  • Paid or gifted endorsements

What’s the difference between a testimonial and an endorsement?

According to the TGA, “any comments you make about your personal experience with therapeutic goods amounts to a testimonial.”

Testimonials are not permitted by those involved in the production, sale, supply or marketing of the goods.

This includes influencers who are engaged by a therapeutic goods company to promote the goods.

“A testimonial is made where an individual person, has used a therapeutic good and has testified as to the outcome(s) they experienced from the use of the good.

For example, ‘I use Brand Z cream on my eczema as it helps soothe the itch and inflammation or ‘Brand A liquid helped ease my daughter’s discomfort during teething’.” 

Whereas an endorsement is a factual information, without any personal results or outcome.

“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’.” 

As an industry body, APAN can endorse a brand or product that meets our definition of quality, but we can’t say how that product can benefit the skin as endorsement is not permitted to confirm a treatment outcome. 

Tips for influencers:

If you are an influencer who is involved with a therapeutic goods company (for example, you have been paid or given a product by the company to promote their goods), you should consider the following tips, as provided by the TGA:

  • Any post about a therapeutic good that you make may be considered advertising. If it is, you have an obligation to comply with the advertising requirements for therapeutic goods.
  • Any comments you make about your personal experience with therapeutic goods amounts to a testimonial.
  • Testimonials are not permitted by those involved in the production, sale, supply or marketing of the goods. This includes influencers who are engaged by a therapeutic goods company to promote the goods.
  • Your social media posts may have an impact on your followers’ beliefs, attitudes, preferences and behaviours. Your comments about therapeutic goods can influence consumers’ choices. Therapeutic goods should be chosen on the basis of clinical need, not through the persuasion of influencers.
  • Understand what the approved purpose of the good is and do not advertise the good for a purpose other than that, even if your experience with the good is otherwise. For more information about the intended purpose of a therapeutic good, see the Australian Register of Therapeutic Goods.

When did the new code come into effect?

All brands and creators had until June 30, 2022, to transition to the new code.

All previously posted testimonials that are in breach are required to be removed by July 1, 2022. 

As the transitional period has now expired any violation of the new laws will be subject to a fine by the TGA if found non-compliant. 

Please also note that in most cases the people who “dob” you to the TGA are usually your competitors!

Also, please note that there is no insurance against a fine as it is a violation of legal requirements, only an injury due to negligence for which you may be sued can be potentially covered by insurance. 

If you are unsure about your obligations in relation to social media advertising therapeutic goods, please seek advice. 

APAN can provide you with further guidelines.  If you require that your advertising activities need to be legally approved, we can direct you to our solicitors – Pointon Partner Lawyers, who are experts in commercial law. APAN also works with their own TGA Consultants who can also assist you.

Visit here for more information about advertising therapeutic goods

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