July 27th, 2020

How to use testimonials and endorsements whilst maintaining TGA compliance

When it comes to creating advertisements for the healthcare industry, it might feel as if there is a minefield of things that could go wrong. Mistakes could get you and your company into trouble. Therefore, following the guidance in the TGA Code is a priority.

The Therapeutic Goods Administration (TGA) ensures the ethical and balanced representation of therapeutics in advertisements and communications. The types of goods that it concerns are drugs and medical devices.

One topic that often comes up with our clients is the possibility of including testimonials and endorsements in their communications. Although obtaining genuine and positive feedback can be straightforward, using these representations in the public domain can present challenges. We have put together this post to decipher the Therapeutic Goods Administration (TGA) Advertising Code rules around using testimonials and endorsements.

The TGA Advertising Code ensures that the marketing and advertising of therapeutic goods promotes the quality use of the product, is socially responsible and does not mislead or deceive the consumer.

 

What is an advertisement?

 

An advertisement is any statement, pictorial representation or design that is intended, directly or indirectly, to promote the use or supply of goods.

Often, social media posts featuring a therapeutic good are classified as advertisements, if these promote the use or the acquisition of these. The post therefore must comply with the legislation.

The TGA Act and the TGA Code apply to channels such as social networking sites, blogs and discussion forums when these are used to promote the use or consumption therapeutic goods. People responsible for the goods’ website and social media channels should ensure that content posted on the internet. This includes ensuring that comments made by third parties do not go against the Act or Code. They should also remove content that goes against the TGA Act or TGA Code.

 

What is an endorsement and a testimonial?

 

A ‘testimonial’ is a type of ‘endorsement’. The key difference is that a testimonial is made by someone who has used the therapeutic goods; whether they have used it personally or whilst caring for someone else.

Both testimonials and endorsements can influence consumer choices. Therefore, here are special requirements for the advertising of therapeutic goods:

  • Testimonials and endorsements used in advertising must not be from health professionals, health practitioners, medical researchers or employees of government authorities, hospitals or healthcare facilities.
    • Your company is planning on creating social media creative featuring testimonials from people who have used your therapy or device. Make sure they do not have one of these professions or work for one of these types of institutions.
  • Any financial incentive or other valuable consideration relating to the provision of the testimonial or endorsement must be disclosed. For instance, the provision of products or services to the person who made the testimonial. If you would like to compensate the person who has given the endorsement, this needs to be made clear.

 

Endorsements

 

The advertisement should not imply the endorsement of the therapeutic good by a government authority or an employee of such an institution. These include hospitals and healthcare facilities.

They should also not include endorsement from health consumer organisations, or organisations that represent the interests of health practitioners, health professionals or medical researchers. ‘Organisationmeans any group, association or body (whether incorporated or unincorporated).

The exception is employees of these organisations (as long as they are not healthcare professionals) if the organisation is named and the nature of the endorsement is disclosed. This means whether the organisation, or employee, has received, or will receive, any valuable consideration for the endorsement.

 

Testimonials

 

A testimonial must be made by a person whose details are verified prior to the advertising occurring and who has used the goods for their intended purpose. Therefore, a simple background check of the person’s profession and other affiliations is essential before engaging them in communications activities. Quite straightforward.

However, this person should not be involved with the production, sale, supply or marketing of the goods. Neither should they be an employee or officer of a corporation that is involved with the production, sale, supply or marketing of the goods. Nor should the person be ‘a corporation’. Finally, they should not be a healthcare professional or work at an institution such as a hospital or government authority.

Before publishing the testimonial, it is important to verify that the person making the claims has used the goods. Additionally, make sure that the results are similar to those expected from the use of the goods in accordance with the directions for use.

Finally, a testimonial must disclose whether the person providing the testimonial has received, or will receive, any valuable consideration. If a paid actor is taking the place of the person providing the testimonial, this needs to be stated. Add a disclaimer if the person providing the testimonial is an immediate family member of an individual involved with the production, sale, supply or marketing of the goods.

 

Other important rules

 

Never reference government agencies (domestic or foreign) in advertising material, as this could imply endorsement by that agency.

  • Never use ‘TGA approved’ or ‘Government endorsed’, or state that a therapeutic good is ‘included in the ARTG by the TGA’, ‘registered by the TGA’, ‘TGA listed’ or similar.
  • Don’t use the TGA logo or the Commonwealth Coat of Arms.
  • The best way to spell out that the product is TGA approved is to write a statement such as ‘Product X is entered / included / listed / registered in the ARTG, <ARTG number>’. See this page for more information.

We hope that this article helped you better understand how to navigate the tricky field of endorsements and testimonials. We recommend that you always refer to the TGA Advertising Code to be water-tight on the legality of your advertising activities.

If you would like to talk through your paid media or social media needs, please follow this link to book a time to speak with one of our friendly team.

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