Therapeutic Goods And Social Media

Social media “influencers” are paid to create social media posts that espouse the benefits of particular goods and services. Many health and wellness companies use influencers as their primary form of advertising. However, new rules mean that incentivised Australian influencers can no longer promote therapeutic goods. The prohibition applies whether the influencer was paid for their endorsement or merely received the product as a gift. This article explains the new restrictions on social media influencers and the intersection of therapeutic goods and social media in Australia.

Therapeutic Goods Advertising Code

The Therapeutic Goods Administration (TGA) regulates the safety, efficacy and availability of therapeutic goods in Australia. The Therapeutic Goods Advertising Code is the cornerstone of the therapeutic goods advertising regulatory framework. It sets out the minimum requirements when advertising therapeutic goods to consumers. Under the Therapeutic Goods Act 1989, it is an offence to advertise to the public in contravention of the Code. The TGA can direct advertisers to remove non-compliant advertising. It can also impose significant fines and penalties against advertisers for breaches of the Code.

The Code is designed to ensure that advertising does not encourage irresponsible or inappropriate use of therapeutic goods. Specifically, the Code requires that all advertising:

• Promotes the effective and safe use of therapeutic goods;
• Supports informed health care decisions;
• Does not deceive or mislead the consumer, or create unrealistic expectations about the product’s efficacy; and
• Is consistent with applicable current public health campaigns.

What Is A Therapeutic Good?

A therapeutic good is not an ordinary commercial product. Rather, a therapeutic good is a medicine, medical device, health or wellness product. Therapeutic goods are intended to affect the body, and there may be risks associated with their use. Even items such as cosmetics can be subject to TGA regulations if they claim to have therapeutic properties. A therapeutic use claim includes statements such as “removes toxins”, “relieves pain”, “fades age spots”, or “reduces inflammation in the body”.

Advertisers of therapeutic goods must meet a higher ethical standard because consumers rely on therapeutic goods for their health and wellness. A consumer can have difficulty evaluating the appropriateness of a therapeutic good. Therefore, therapeutic goods marketing must be truthful, balanced and not misleading.

Social Media Restrictions

An influencer can affect the purchasing decisions of others because of their knowledge, position, authority or relationship with their audience. An influencer’s social media post can significantly impact a follower’s attitudes, beliefs, preferences and behaviours. Certainly, an influencer’s comments about therapeutic goods can influence consumers’ choices. After all, that is the reason that companies pay influences to promote their products. There is an inherent problem with paid influencers advertising therapeutic goods because consumers should choose these products based on clinical need and likely effectiveness.

Australia’s medicine regulator brought in new advertising restrictions for therapeutics goods from 30 June 2022. The rules apply to all social media posts promoting therapeutic goods, including older testimonials. An influencer must remove all advertisements that do not meet the Code by 1 July 2022.

The amended Code clarifies the rules relating to social media testimonials that advertisers may have found ambiguous in the previous Code. The Code applies to all advertising, including statements, designs and pictorial representations that directly or indirectly promote the product. A social media post that promotes the supply or use of a therapeutic good is classified as an advertisement.

Anyone who advertises a therapeutic good for “valuable consideration” is now considered to be involved in the production, sale, supply or marketing of the goods. As such, companies cannot incentivise influencers to advertise these products. This prohibition applies even if their testimonial is their honest opinion as a consumer. For instance, an incentivised Instagram influencer cannot promote a moisturiser with SPF protection, even if they genuinely used and enjoyed the product.

What Is Valuable Consideration?

Valuable consideration includes not only monetary payments but also gifts, services, opportunities and other incentives. Under the Code, even if a company sends the influencer the product for free, they cannot make a social media testimonial about the product.

The changes to the Code have the potential to dramatically impact social media influencers. Many of these individuals rely on paid partnerships with health and wellness brands for their income. They also affect companies that can no longer use online influencers as their primary source of marketing. Advertisers have several options if they need advice or clarification of the new rules. Companies can consult their industry body, the Therapeutic Goods Advertising Consultative Committee, or obtain specialist legal advice from Armstrong Legal.

Australian companies and influencers must comply with the Therapeutic Goods Advertising Code. Armstrong Legal can help if you have any questions about the new rules for social media advertising of therapeutic goods. Please call 1300 038 223 today to contact our experienced legal professionals.