Understanding the latest TGA guidance on social media advertising

The Therapeutic Goods Administration (TGA) has recently announced new updates made regarding the advertisement of therapeutic goods on social media, which is a comprehensive addition of social media tools, platforms and channels. We have compiled these changes into an accessible summary of what has changed and what these shifts mean moving forward.

Social media refers to any online platform or tool that enables users to interact with one another. Social media types include:

1. Social messaging tools such as WhatsApp
2. Social photo and video tools such as YouTube and Instagram
3. Social communities such as Facebook
4. Discussion networks such as Reddit and Discord
5. Social audio tools such as Spotify or Soundcloud
6. Microblogging tools such as X
7. Networking sites such as LinkedIn

Utilising these platforms, influencers may be uncertain if they can post organic content about therapeutic goods. The TGA has clarified that social media posts made by anyone with a vested interest in the sale of goods, including interests of manufacturers, sponsors and retailers, are likely to be considered promotional content.

Who is liable for advertising therapeutic goods on social media?

Liability for advertisements rests with the person who is the manager or creator of the content being posted. In practice, this means the individual responsible for publishing the material, such as the owner, must ensure that all advertising requirements under the Act are met.

Any online representation of goods made for the purpose of promoting a therapeutic product is likely to be considered advertising. This includes social media activities intended to:

1. Attract new customers, including encouraging consumers to seek out a therapeutic good.
2. Build loyalty and trust in a product or brand.
3. Sell products.
4. Drive website traffic.

Historical content is also subject to enforcement, with the TGA making it clear that all social media posts; including past posts, must comply with the update’s regulations. Non-compliance can attract hefty penalties, including fines of up to $1.65 million for individuals and $16.5 million for corporations.

The following factors will be taken into consideration when deciding whether certain content is an advertisement:

1. The context in which the information or activity occurs.
2. The audience the information is directed to, what their likely take-out message is and are they likely to consider it to be promotional.
3. The use of non-verbal and unwritten messages (such as pictorial elements).

As these regulatory expectations continue to evolve, it is more important than ever for organisations to understand their obligations and approach health-related communications responsibly.

London Agency is committed to the ethical use of advertising in the health communications space, and we will continue to stay abreast of all legislative and regulatory changes that impact our industry.