July 30th, 2020

MTAA Code of Practice digested: how to get your message across whilst still swimming between the flags

The Medical Technology Association of Australia (MTAA) has put together the Code of Practice to ensure the ethical and balanced representation of medical technologies in advertisements. This might be daunting to your marketing or communications team, who is planning on conducting medical technology advertising.

This article outlines the key requirements for medical technology advertisements in Australia. We hope it will encourage your team to look into the MTAA Code of Practice as a whole.

 

What is advertising?

 

Advertising in relation to a medical technology includes any statement, pictorial representation or design that is intended to directly or indirectly promote the use or supply of a medical technology.

 

Do’s and Don’t’s of medical technology advertising

 

Do’s

  • Be readily recognisable by the target audience as advertising.
  • Comply with the advertising laws and regulations for both medical devices and medicines, where the medical technology consists of both a medical device and a medicine. Check out this blog post on the Therapeutic Goods Advertising Code, which is the basis of all medical advertisements in Australia.

Don’t’s:

  • Be misleading or deceptive.
  • Claim that a medical technology is Unique or has some special merit, quality or property unless the Claim can be substantiated. Unique means a significant attribute relevant to the use of a particular medical technology, that is materially different from the attributes of all other medical technologies available on the Australian market.
  • Use the term ‘safe’ without appropriate qualification.
  • Imitate the branding, names, logos, get-up or graphic design, copy, slogans, or general layout adopted by a competitor. Imitation can mislead, deceive or confuse.
  • Use the term ‘new’, or any other term having the same connotation in any advertising to describe a medical technology after one year from the date of the medical technology’s launch in Australia, unless appropriately qualified.

 

Specific information required on medical technology advertisements

 

  • The brand name of the medical technology (where applicable).
  • The name and contact details of the Sponsor or the Company Representative. This is valid for devices entered in the Australian Register of Therapeutic Goods (ARTG). The Company Representative should be listed for Medical Technology not required to be entered in the ARTG.
  • Claims consistent with the medical technology’s registration, listing or inclusion on the ARTG. We have written a blog post deciphering the TGA Code which gives a little more detail on this.
  • Any other information required by law or as a condition of grant of a licence.

According to the TGA Act, a Sponsor is a person who:

  • Exports or arranges the exportation of the medical technology from Australia.
  • Imports or arranges the importation into Australia.
  • Manufactures the goods in Australia or arranges for another person to manufacture the goods for supply (in Australia or elsewhere).

They do not include a person who exports, imports or manufactures the goods or arranges the exportation, importation or manufacture of the goods on behalf of another person is a resident of, or is carrying on business in, Australia.

According to the MTAA Code of Practice, a Company Representative means any person or entity engaged in representing, acting for or advancing the interests of a company pursuant to any agreement, arrangement or understanding between that person or entity and the company, including a contract of employment or other employment arrangements, or any agency or consultancy arrangement.

 

Claims and endorsements

 

The rules around claims and endorsements are important. Testimonials and endorsements convey key messages around your medical technology and can be a significant part of an advertisement. All medical advertising codes contain guidance on how to use testimonials and endorsements appropriately.

These include:

  • Being able to substantiate all claims in the advertisement by reliable technical, scientific or other support.
  • Citing the source of the claim where the claim is likely to mislead or deceive if its source is not cited. If a third-party requests substantiation of a claim, the company is required to provide substantiation within ten working days.
  • Identify any unpublished data as ‘data on file’ when cited and make the data available on request.
  • The name or photograph of a healthcare professional cannot be used without their written permission, or in any way that is contrary to the codes and ethical requirements of that healthcare professional or likely to mislead, deceive or confuse.

 

Comparative Advertising

 

Your company might want to make comparative claims in an advertisement, which is possible, however there are some requirements. There needs to be strong supporting evidence to back up this comparative claim.

Comparative claims could potentially commence competitive disputes. Therefore, it is essential to ensure that comparative claims are current, accurate, balanced. They must not mislead or deceive by implication or omission.

Additionally, an advertisement must never denigrate a competitor’s medical technology.

 

Social media to promote to healthcare professionals

 

All companies must have policies and procedures in place describing the roles and responsibilities of Company Representatives when interacting with healthcare professionals via social media. All use of social media by companies in the promotion of medical technology to healthcare professionals must comply with the requirements of the code relating to advertising and other relevant laws and regulations.

 

We hope that this article has given you a better understanding of the essentials of the MTAA Code of Practice. We encourage healthcare companies to be creative, however more importantly we ensure that it is always well-balanced, ethical and law-abiding.

 

If you would like to talk about your medical technology advertising needs, please follow this link to book a time to speak with one of our team.

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