TGA rules confusion: influencers can still promote therapeutic goods

Misinformation surrounding the rules of the Therapeutic Good Administration’s (TGA) Advertising Code, which regulates how advertisers and influencers can promote therapeutic goods, caused a stir across the industry yesterday, with claims that influencers would no longer be able to promote therapeutic goods.

The new code, which was released in early December and came into effect on the 1st of January this year, became a topic of confusion and distress amongst agencies and influencers when the varying interpretations of changes were published by several news publications over the weekend.

The Australian Influencer Marketing Council (AIMCO) was quick to address the confusion, clarifying that the updated TGA code ‘does not ban promotion’ of therapeutic goods, but aligns the rules for influencers with the longstanding rules for other advertising formats of therapeutic goods.

The main change here will be that influencers will no longer be able to provide paid testimonials on therapeutic goods, as this is banned in all advertising formats for therapeutic goods under the TGA Code.

Influencers will still be able to endorse and promote therapeutic goods for in exchange for payment or gifts, so long as the endorsement abides by the rules stipulated in the TGA Advertising Code.

Tegan Boorman, AIMCO Guiding Council member and founder of social media legal consultancy Social Law Co said:

“Whilst the new Therapeutic Goods Advertising Code clarifies that testimonials are unable to be provided by Influencers in advertisements about therapeutic goods, it does not prohibit some Influencers from providing an endorsement (without any testimonial) about therapeutic goods, whether expressly or by implication. Brands and Influencers should seek legal advice on advertisements intending to contain such endorsements to ensure that they are meeting the requirements under the Code.”

AIMCO pointed to the interpretation of an endorsement versus a testimonial as key issues.

The terms are defined on the TGA website as follows:

“An endorsement is made where a person, or corporation, sanctions (approves of) a particular therapeutic good but there is no indication as to the outcome(s) from the use of the good by any individual. For example, ‘Company X recommends Brand Y disinfectant'”

“A testimonial is made where an individual person, has used a therapeutic good and has testified as to the outcome(s) they experienced from the use of the good. For example, ‘I use Brand Z cream on my eczema as it helps soothe the itch and inflammation’ or ‘Brand A liquid helped ease my daughter’s discomfort during teething'”

Caroline Hogh Groth, a wellness influencer who regularly works with brands in the skincare and supplement categories, said that the news about the changes was confusing.

“I think there’s been a lot of misinformation spread across digital news platforms and social media and that’s made it hard to understand what’s actually changing and how it’s impacting the industry; both for brands and content creators/influencers,” said Hogh Groth.

“After reading the new legislation directly from the TGA, as opposed to news-forums that’ve covered ‘snippets’ of the legislation, I’m more at ease with the upcoming changes that the industry and myself are facing. I do think it will affect my work to some extent, however, it’s also part of my job to adjust to ongoing changes both in the industry and on social media as we move towards creating more transparency for the consumer. I personally feel that the shift benefits us all and I’m still able to produce genuine, authentic content that my audience can relate to whilst still adhering to the new code.”

However, Hogh Groth did feel the TGA’s rules about testimonials would impact her ability to connect openly with her audience when promoting goods that fall under the code.

“I do think it’s a shame that we can’t include personal testimonials any longer. I can only speak for myself, but I’ve always approached what I do and my community/following with the utmost respect. This means that my authenticity and honesty means more to me than any amount of money ever will, because once you lose trust from your following, you don’t get it back. This means that any brand I’ve ever worked with (and ever will work with in the future) will always be one I’ve tested and tried and give honest feedback to my community about. I turn down anywhere between 30% – 40% of brands reaching out to me because I either don’t think it’s well aligned or I simply don’t think their products have the effect that they’re promoting. So for me to not be able to include a genuine personal testimonial – even if it’s a paid partnership – is a real shame.”


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