As a business owner, marketing your therapeutic goods is a crucial and non-negotiable part of your business. While traditional marketing channels are still useful, influencer marketing is the new norm. Due to its special nature, all advertising of therapeutic goods is subject to the requirements of the Therapeutic Goods Act 1989 (Cth), the Therapeutic Goods Regulations 1990 and the Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021 (the Code). This article sets out whether your business can engage influencers to help promote your therapeutic goods.
The Therapeutic Goods Advertising Code
The Therapeutic Goods Advertising Code (Code) outlines the minimum requirements to ensure that therapeutic goods are advertised safely and ethically and that promotions align with ongoing public health campaigns. The Code applies to both therapeutic and non-therapeutic claims, and violating the Code can result in criminal and civil penalties.
As of 1 July 2022, the Code prohibits paid or incentivised testimonials of therapeutic goods.
Difference Between a Testimonial, Endorsement and Advertisement
An advertisement is any comment, design or picture representation intended to promote the use or supply of a therapeutic good. This includes a social media post, such as an Instagram reel or a Facebook post. A testimonial is any statement someone makes in relation to their personal experience of using the therapeutic good. An endorsement is a statement or pictorial representation that approves or supports the use of the therapeutic good. The TGA also sets out useful examples to differentiate an advertisement, testimonial and endorsement.
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Testimonials
The Code prohibits testimonials from a person ‘engaged in the production, marketing or supply of the advertised therapeutic good’. This includes a person who has received valuable consideration in return for providing the testimonial.
Valuable consideration can come in many forms, such as:
- money;
- benefits;
- offers;
- discounts; or
- other gifts.
To comply with the Code, you cannot include a testimonial in an advertisement that you post on your social media platforms where valuable consideration has been exchanged. However, the Code allows genuine, unpaid testimonials by influencers that have been made separately from their paid engagement with you. It is also important to verify the influencer’s identity and the contents of the testimonial to ensure compliance with the Code.
Endorsements
Under the Code, influencers can make endorsements if they have received valuable consideration that:
- an organisation or person restricted by the Code does not approve it; and
- the consumer knows that the endorsement was paid for.
Practical Measures When Engaging an Influencer
If you engage with influencers to promote your therapeutic goods, you must be:
- aware of the primary advertising rules under the Code; and
- conscious of the difference between endorsements and testimonials, i.e can pay influencers to post endorsements if there are appropriate disclaimers but prohibited from doing so for testimonials.
The TGA provides practical tips to consider prior to engaging an influencer and posting content they produce for you on your social media platform. Notably, you are responsible for any content found on any of your social media platforms, even if an influencer has generated it for your business. To manage content generated from the public and from influencers you engage, some additional practical measures include:
- having a process to monitor your relevant social media platforms;
- setting out clear community guidelines to users in posting comments;
- disabling third-party comments or requiring approval for comments to be posted on your relevant social media platforms; and
- regularly reviewing content created by influencers and ensuring that it is in line with the Code.
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Key Takeaways
If you supply therapeutic goods and want to promote them via an influencer, the Code will apply. It is crucial that advertisements, testimonials or endorsements do not mislead or deceive consumers and that any content promoting therapeutic goods is socially responsible. Knowing the legal requirements before engaging an influencer is vital.
If you have any questions about engaging an influencer to promote your goods, our experienced regulatory compliance lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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