Paid testimonials now prohibited: Key changes to the Therapeutic Goods Advertising TGA Code explained

On 1^st January 2022, a revamped Therapeutic Goods Administration (TGA) Advertising Code came into effect, including several changes that will shake up the way the health industry markets to consumers.

Ambiguity has long been a word associated with the TGA Code. The changes seek to address these concerns. However, obscurity will remain beyond this reset and London Agency will endeavour to clarify those niggling grey areas. Look out for more content on this topic in the coming weeks and please do contact us if you have questions after reading this article.

It’s important to note that advertisers have until 30^th June 2022 to transition to the new TGA Code.

Below we outline some key changes that medical companies should price into their marketing and PR strategies.

Paid or incentivised influencer testimonials banned

In what is the most controversial change, splashing across lifestyle columns of major news outlets in recent weeks, influencers will now be prohibited from paid or incentivised promotions of therapeutic goods.

The new TGA Code states:

• Paid or incentivised testimonials, regardless of whether any payment is disclosed, or the testimonial is genuine, are prohibited.
• While genuine unpaid testimonials are permitted, under the new TGA Code, influencers, direct sellers and anyone else who receives “valuable consideration” for their testimonial are taken to be persons “involved with the production, sale, supply or marketing of the goods” (and therefore prohibited from providing testimonials).
• “Valuable consideration” is broad and would include non-monetary items such as services, gifts, opportunities, or any other incentive. Advertising that includes paid or incentivised testimonials that is currently live and accessible (including on social media) will need to be taken down by 1 July 2022, even if uploaded prior to that date.
• Brand ambassadors can endorse a therapeutic good (that is, provide an expression of support for a product or brand) provided the endorsement does not refer to the person’s personal experience using the good. If the endorsement refers to health benefits, the endorsement must be typical of the benefit that can be expected from the goods when used in accordance with the label and the approved indication and use.
• The new TGA Code also prohibits endorsements by particular people and organisations, including brand ambassadors who represent themselves as having expertise or qualifications in a health-related field, current and former health practitioners, and medical researchers.

The Code is unchanged for PR

This is unchanged from the 2018 iteration of the TGA Code. First things first, if you value media as a platform, you can keep doing what you’re doing because the TGA Code does not apply to “genuine news” that is published or broadcast in any medium by:

• a broadcaster; or
• a datacaster; or
• the SBS; or
• a person of kind prescribed by the Regulations for the purposes of paragraphs 42DLB(10) (a) or 42DMA (2) (a) of the Act.

However, when it comes to determining what is “genuine news”, London Agency advises seeking out the opinion of a professional with news or PR experience.

 Mandatory statement requirements

Advertisements for therapeutic goods should carry a mandatory statement which is legible and easy to understand. The statements in the 2018 code have been simplified for medicines, medical devices, and other therapeutic goods. The new TGA Code specifies the circumstances in which they are required.

Sampling requirements

Under the new TGA Code, a sample of a therapeutic good amounts to advertising of that therapeutic good, which is prohibited unless identified exemptions apply. Previously, only expressly prohibited “offers” of a sample were clearly non-compliant.

It defines a “sample” as any goods given for free, however does not include a ‘buy one get one free’ offer (provided that the free therapeutic goods are the same as the purchased therapeutic goods).

Despite this, the list of goods that may be offered as samples has been significantly expanded. The list includes COVID-19 related products such as rapid antigen tests, disinfectants, face masks and hand sanitisers as well as blood glucose strips, nicotine replacements therapies, oral hygiene products and female hygiene products.

It will be important to check goodie bags to make sure any therapeutic goods that have been included or will be provided as freebies are included on the approved samples list.

Closing remarks

In addition to these key changes, the new TGA Code:

• Expands the general prohibition on advertising to children over 12 years to include goods containing a substance included in Schedules 2, 3 4 and 8 of the Poisons Standard.
• No longer provides for prohibited representations (that are now only provided for in the Therapeutic Goods Regulations 1990).
• Expands the prohibition on comparative advertising to include comparisons with therapeutic services that suggest comparator services are harmful or ineffectual.

Please contact the team for further advice on the new Code and look out for more content on this topic by clicking this link.