Did you know that it’s illegal as an Australian health professional to endorse registered therapeutic goods or claim a therapeutic benefit for a non-TGA registered good? With more and more health professionals using social media as a form of advertising or a way to engage with the general public, it’s important to be aware of your obligations (and avoid the pitfalls!). This applies to ALL Australian health professionals – whether you’re a physio, psychologist, nutritionist, podiatrist etc. – these rules affect you.
Broadly, therapeutic goods are products for use in humans in connection with:
- preventing, diagnosing, curing or alleviating a disease, ailment, defect or injury
- influencing, inhibiting or modifying a physiological process
- testing the susceptibility of persons to a disease or ailment
- influencing, controlling or preventing conception
In the last few months, we’ve seen uproar online regarding the changes to the Therapeutic Goods Association (TGA) Code of Advertising (such as this article appearing in The Sydney Morning Herald which sparked widespread discussion among influencer communities). The Code regulates advertising therapeutic goods to the public and breaching it can result in criminal and civil penalties. The central purpose of the Code is to ensure that promotional material is “truthful, balanced and not misleading.” So what are these changes, what do they mean, and how do they impact health professionals?
What changes have occurred?
The main changes to the Code relate to clarification on how the product may be represented, as well as differentiation between endorsements and testimonials. Although some media outlets claimed that health professionals would now not be allowed to provide testimonials or promote medications, this is not new. Health professionals have always been prohibited from endorsing or providing testimonials for therapeutic goods. What the new Code has clarified is that even retired or no longer registered health professionals may not endorse or provide a testimonial for therapeutic goods.
What does endorsement mean?
When the TGA uses the term endorsement, they mean any content or conversation that provides explicit or implicit recommendation of a good or brand. So, let’s use the example of a TGA registered essential oil. Let’s consider Grace – she’s an osteopath and is a network marketing representative (like selling Tupperware) for a popular essential oil company. Grace has a social media profile and uses that platform to advertise her products and talk about her own personal use. This is in breach of the TGA Code of Advertising in two ways:
- 1.Health practitioners are prohibited from endorsing or providing testimonials for TGA registered goods.
- 2.Any individual involved with the company (including network marketing) is prohibited from providing testimonials or endorsements related to the product.
Endorsement is not always as explicit as this example, however. Endorsement may also be inadvertent, such as publicising an image with a brand displayed. Likewise, even if your intention isn’t to sell a product – maybe you just really believe in it and want to share it with your networks – this could still be in breach of the Code.
However, Grace would not be in breach of the Code if she shared information on her social channels that was educational in nature and did not mention a brand or display an image related to the brand.
It’s also important to note that you can of course make recommendations to your patients during their appointments – suggesting treatments that they might find helpful is part of your job! However, you shouldn’t be encouraging them to use a specific brand; keep your advice general.
Always ask yourself
the question “would a reasonable person perceive my highlighting this product as an endorsement?” If the answer is yes or even maybe, don’t do it.
Who is a health professional and who do these rules apply to?
According to the Therapeutic Goods Administration, a health professional is anyone that is registered with Australian Health Practitioner Regulation Agency (AHPRA). This includes anyone that has been registered with AHPRA in the past, students, any medical scientist, and any individual that portrays themselves as a health professional.
What if I have a large social media profile and am approached to do collaborations?
Proceed with caution! Many health professionals are now taking opportunities as social media content creators and influencers. As this field emerges, we are seeing increasing attention from regulators on how to monitor this kind of advertisement. As a health professional, you cannot receive payment for advertising therapeutic goods, even if you do not provide a testimonial. In addition to this, anything that you advertise (such as a service or non-therapeutic product) can be assessed against Australia’s Ad Standards. You can read more about influencer regulation here.
How do I know if it’s a TGA registered good?
TGA registered goods have an Australian Regulated Therapeutic Good (ARTG) number, either L for Listed or R for Registered. The products are searchable on the ARTG database and have permitted claims and indications associated with their registration. The important fine print here is that if a product is not registered with the TGA but you make a therapeutic claim, this is now treated as if it was a TGA registered good.
Using social media as a health practitioner can be daunting, however there are plenty of resources and educational activities that you can use to help with your legal obligations for social media. Get on the front foot and participate in training. If you’re a practice manager and you’re wondering how your team can learn the relevant skills and ethical social media usage as a health professional, perhaps consider a workshop like this one.
this article is not legal advice. If you need further assistance, please seek legal counsel or contact the TGA.