As a business owner, you should be familiar with advertising requirements and legislation and always ensure you are on the right side of the law. If you are selling therapeutic goods, they must be registered on the Australian Register of Therapeutic Goods (ARTG) and comply with therapeutic goods regulations. However, you should also consider the specific instances where therapeutic goods are only suitable for use and marketing to health professionals. This article explains the regulations and requirements to advertise a therapeutic good to health professionals.
Advertising Regulations
Generally, any consumer advertisements directed at or accessible by the public must comply with the Therapeutic Goods Advertising Code (the Code), compliance with which is regulated and enforced by the Therapeutic Goods Administration (TGA). Furthermore, the Code aims to make sure that advertisements, and any claims made about therapeutic goods, are socially responsible and do not mislead or deceive consumers.
However, there are certainly cases where you will only want to advertise your goods to health professionals exclusively. This is because we assume health professionals have the appropriate expertise to analyse advertisements regarding therapeutic goods. Therefore, the Code does not apply to these advertisements.
Who Are Health Professionals?
The Therapeutic Goods Act has a broad definition of health professional, which includes:
- medical practitioners;
- psychologists;
- dentists;
- pharmacists;
- optometrists;
- chiropractors;
- physiotherapists;
- nurses;
- midwives;
- dental hygienists, prosthetists and therapists;
- osteopaths;
- podiatrists
- herbalists;
- homoeopathic practitioners;
- naturopaths;
- nutritionists;
- practitioners of traditional Chinese medicine; and
- persons who are engaged in the business of wholesaling therapeutic goods or purchasing officers in hospitals.
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What if I Advertise to Health Professionals and Consumers?
Any advertisement accessible by consumers must comply with the Code, including where the therapeutic goods themselves are not available for consumers to purchase directly. Furthermore, the TGA has made it clear that if the general public can access and view the advertisements, they will consider it an advertisement to consumers.
How Do I Ensure My Advertisement is Not Accessible by Consumers?
For your advertisement to count as exclusively for health professionals, you must secure them somehow. Specifically, you must ensure a degree of separation from the general public.
You can consider:
- restricting information behind a firewall;
- requiring confirmation of registration with the Australian Health Practitioner Regulation Agency (AHPRA);
- restricting access to those with a username and password, following confirmation of health professional status;
- requiring a declaration from the individual that they are a health professional;
- restricting access to those with a valid email address of a health services provider (such as a hospital or clinic);
- only making the IP address available to confirmed health professionals or health applications;
- advertising on platforms already directed exclusively to health professionals such as specific journals or publications or a computer program that only runs on approved hospital platforms; or
- where other non-promotional content refers to therapeutic goods, including on that content that the products are only for sale to confirmed health professionals.
Other Laws
While the requirements under the Code may not apply, you should still be mindful of the other advertising requirements that may apply to the therapeutic goods.
The Australian Consumer Law prohibits any advertising that:
- is misleading or likely to mislead or deceive;
- makes false or misleading claims;
- is not able to be substantiated.
That is, your material in any situation must still be valid, accurate and not misleading.
The Health Practitioner National Law regulates how health professionals registered with AHPRA advertise therapeutic goods.
Finally, the Medicines Australia Code of Conduct (MA Code) sets the standards for Australia’s ethical marketing and promotion of prescription pharmaceutical products. In particular, it is a condition of registration of prescription medicines on the ARTG to comply with the standards in the MA Code.
Key Takeaways
Therapeutic goods that you advertise to health professionals do not need to comply with the Therapeutic Goods Advertising Code. However, there are certain restrictions. Most importantly, these advertisements cannot be readily accessible by the general public. As such, you must ensure a degree of separation between your material and general consumers by restricting access. In addition, whenever you are advertising products, you should ensure that any promotional material is accurate, safe and is not likely to mislead your customers.
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Frequently Asked Questions
Therapeutic goods are generally defined as goods that can treat an illness or ailment, or goods that are represented or likely to be taken for therapeutic use. When considering whether your product is a therapeutic good, you should consider the claims you are making about the health effects that you intend the product to have.
Yes. You can advertise a therapeutic good solely to health professionals by restricting access to general consumers.
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