Under the influence: Aussie regulator issues new testimonials and influencer advice as new ad code kicks in
The Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021 took effect in January 2022, and after a six-month transition period from its predecessor, the 2018 Advertising Code, all therapeutic goods advertising must adhere to the 2021 Code from June 30.
The latest guidance was published after the regulator the Therapeutic Goods Administration (TGA) undertook extensive consultation with industry bodies, including Complementary Medicines Australia (CMA), advertisers, sponsors and ad agencies on the updated Section 24 of the 2021 Code.
The TGA stated that while testimonials were considered a type of endorsement, an endorsement was not a testimonial but “a form of support, approval or sanction”.
It further clarified that a testimonial was a “statement about a therapeutic good made by a person who claims to have used that good or to have used it while caring for someone else”.
The guidance provides information for advertisers on who cannot make a testimonial, how it should be verified, what is and is not considered “valuable consideration”, and who can and cannot make an endorsement.
It also provides examples of compliant and non-compliant advertisements. For instance, advertisers are not allowed to engage government authorities in their ads unless legally permitted, and are under no circumstances permitted to use:
- hospitals, healthcare facilities (apart from community pharmacies)
- government employees or contractors
- current or former health practitioners or professionals or medical researchers
- anyone who claims to be qualified to diagnose, treat or prevent diseases, ailments, defects or injuries
Online and offline implications
The TGA had earlier published a reminder that the 2021 Code would extend to both online and print advertising, and in the case of the former, apply retrospectively to ads on social and broadcast media, which “can be readily amended”. As such, the TGA stated on its website on April 5 that it expected online advertisers to begin adhering to the new code by June 30.
For print or hard copy ads, the TGA said it understood that advertisers might “hold stock of hard copy advertisements”. It would therefore adopt a pragmatic approach and not seek to take enforcement action as long as the existing ads complied with the 2018 Code’s mandatory statement requirements.
Key differences
The TGA also published a full Table of Changes to compare the differences between the 2018 and 2021 Codes, including changes to requirements for mandatory statements, testimonials and endorsements, and health warnings.
At the same time, the administration encourages its members to not only familiarise themselves with the new guidance but also send their questions, as well as requests for changes or additions, to either the TGA via the Department of Health enquiries portal form, or to CMA at grpuavpny@pznhfgenyvn.bet.nh.
CMA has said it is “continuing to consider whether parts of the Code on testimonials and endorsements could be made less restrictive and welcomes member feedback on scenarios where this should be the case”.
