If you’re selling health products or you’re an influencer who promotes these kinds of goods as part of your online partnerships, you may have come across the Therapeutic Goods Advertising Code, more commonly known as TGA. This was first introduced in January 2022 to regulate the way that people advertise health products online. 

Why?

Well, there are lots of regulations around selling goods to the public, but when it comes to health products, things get a little more sensitive. 

If you’re familiar with privacy laws, for example, you’ll know that health information is treated a little bit differently to standard information. This is because health information is considered more sensitive than your average data, and so the law imposes additional rules for that category. 

The same thing applies to the sale of goods. When it comes to therapeutic or health products, the rules are a little more dense. Since it is a serious area, changes will happen quite often. 

So, if you’re an influencer for therapeutic goods, you need to make sure you stay up to date with the latest changes to the TGA Code. 

What Is The Therapeutic Goods Advertising (TGA) Code?

The TGA Code (the Code) is a regulatory framework, however it carries legal consequences since it falls under the Therapeutic Goods Act 1989

It sets out rules around advertising any health products or therapeutic goods. It’s a little more regulated than standard goods, because the use of these products and the way influencers advertise them can have long-term and serious consequences for someone’s health. 

You may be familiar with the concept of misleading and deceptive conduct (this is covered by the Australian Consumer Law). It basically prohibits businesses from misleading consumers about the things they sell. 

Well, the Code is quite similar, except there are additional requirements due to the sensitive nature of therapeutic goods. For example, you need to make sure you:

  • Promote the safe use of the goods (for example, you could encourage people to not overuse or underuse)
  • Are not misleading or deceiving consumers about the effect of the product
  • Are compliant with public health campaigns

Who Does It Apply To?

The Code applies to anyone who is advertising therapeutic goods. More specifically, it outlines rules around what you can and can’t say about these products when trying to sell them. 

If you’re an influencer who works with businesses selling health or therapeutic goods, and you’re required to advertise for these products, you need to be aware of your obligations under this newly refreshed Code. 

What’s Changing In 2022?

So, now that we’ve covered the 2018 Code, what’s this new Code that we need to be aware of?

The changes mainly revolve around how you represent your products to customers, and makes it worth revising your marketing strategy. 

Let’s go through some of the key updates. 

Stricter Requirements Around Testimonials

Under the 2018 Code, the requirements around testimonials were a little unclear. They outlined that you couldn’t provide testimonials from people who were directly involved in the “production, sale, supply or marketing” of those products, but also required them to disclose any consideration received for providing those testimonials. 

The new Code is a lot clearer (thankfully). Essentially, you cannot provide testimonials for the health product if:

  • The testimonial was paid or incentivised
  • You are involved in the production, sale, supply or marketing of the goods (you will be taken to be involved if you were given ‘valuable consideration’)

Put simply, you cannot give testimonials for a therapeutic good if there was some incentive or consideration

Mandatory Statements

The new Code has added a number of requirements for statements that sellers need to make when advertising certain types of products. 

So, you need to check whether you fall under any of the losted circumstances, and if you do, you need to include the required health warnings to your customers. 

It’s important to note that social media advertisements do not fall under ‘short form advertisements’, so they generally don’t need to include these mandatory statements. However, you can still choose to include certain health warnings. 

Undue Alarm, Fear Or Distress

When you’re making claims about a certain health product, the new Code prohibits you from causing unnecessary stress for consumers. For example, if you say something along the lines of, “People who don’t use this product are 50% more likely to contract X disease”, then this would be breaching the Code. 

You can probably imagine how common these kinds of statements were in the peak of COVID-19, so the Code has now regulated the use of these kinds of claims. 

Sampling Requirements

Another significant change is that the Code now includes more goods that can be provided as samples. For example, they’ve now added rapid antigen tests as part of the list of approved samples. 

When Does It Come Into Effect?

Thankfully, you won’t need to rush too much just yet .The 2018 Code will remain in effect until 30 June 2022. Up until this date, you can choose to comply with either the 2018 Code or the 2021 Code. 

However, after 30 June 2022, all advertisers will need to comply with the 2021 Code

The TGA has provided a detailed comparison of the 2018 and 2021 Codes, so if you need more clarity around the changes, it’s recommended that you have a read through their website. 

What This Means For Influencers

If you’re an influencer, it’s important that you always stay up to date with any changes to the Code. This is because it can have serious legal consequences, given the sensitive nature of health products. 

Example
Let’s say you’re a rising influencer, whose content resides primarily on Instagram. You’ve partnered with a business called GLOW, which sells a special body oil that aims to remove long-term scars. 
The product usually takes at least 3 months to actually see visible results, but GLOW offers to pay you more if you say that it showed results for your skin as early as 1 month. 

Your agent sits down with you and goes through the recent changes to the TGA Code. He reminds you that as an advertiser of a therapeutic good, you’re under an obligation to not make advertising claims that would give consumers a false impression or expectation about the product, which is exactly what GLOW is asking you to do. 

More specifically, the rule around incentivised testimonials prohibits you from making any testimonial for this business, as you are directly involved in the marketing of the goods. 

In this case, your safest option would be to decline the offer unless you can advertise the product in a way that is compliant with the TGA Code. 

Next Steps

If the Code applies to you, you may want to spend some time familiarising yourself with the changes as the consequences can get quite serious if you’re not compliant. 

If you have any questions around your legal obligations as an influencer, or how you can better protect your business in an online market, feel free to chat with one of our lawyers. 

If you would like a consultation on your options going forward, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

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