The Therapeutic Goods Administration has issued a lengthy clarification explaining precisely what is – and is not – permitted to be published as a ‘testimonial and/or endorsement in advertising about therapeutic goods.
The TGA has published updated guidance for the application of Section 24 of the Therapeutic Goods Advertising Code 2021, which explains the requirements for using endorsements and testimonials in advertisements about therapeutic goods – including a long list of practical examples.
The TGA emphasised therapeutic goods ‘are not ordinary consumer goods, with consumers of therapeutic goods a more vulnerable consumer cohort’.
It is therefore ‘appropriate and important that rules are in place surrounding the advertising of therapeutic goods to support informed consumer health care choices’.
The TGA explained the reason its Code prohibits certain individuals and organisations from endorsing therapeutic goods or making testimonials about them is to ensure that:
- consumers are not influenced excessively or inappropriately by endorsements and testimonials; and
- health care choices are made on the basis of an individual’s personal circumstances rather than the experience of another.
Verifying testimonials
The TGA noted consumers ‘should be able to trust that testimonials used in advertisements for therapeutic goods are unbiased accounts of an ordinary consumer’s use of the product and have not been incentivised’.
Hence, testimonials made by anyone engaged in production, marketing or supply of the advertised therapeutic good (along with others described in the Code, such as immediate family, paid ‘influencers’ and direct sellers) are not permitted.
Prior to including a testimonial in an advertisement about a therapeutic good, an advertiser must confirm:
- the maker’s identity – and that he/she is not someone whose testimonial must not be used in advertisements.
- that the content is consistent with the ‘proper use’ of the goods; does not include claims inconsistent with the ARTG entry for the good; does not refer to health benefits other than those typical of the ‘expected benefit’ from the good when used properly and in according to directions; does not contravene any relevant Code requirements.
Where an advertisement provides links to other websites or other information, the linked material is considered part of the advertisement and must comply with the Code.
The TGA specifically warned that if an advertisement ‘provides a link to an international website that includes testimonials’, then those testimonials ‘are required to comply with the Code including the requirement for the advertiser to verify the content of, and identity of, the person making the testimonial’.
Valuable consideration
Testimonials that are induced by payment of any kind – ‘valuable consideration’ – are prohibited, despite whether payment is disclosed and/or the testimonial is genuine.
The TGA defines ‘valuable consideration’ as ‘what is given to a person in exchange for a testimonial or for them to otherwise advertise or market the good – that is, the testimonial maker agrees to provide a testimonial in exchange for compensation of some kind’.
Examples of valuable consideration given in exchange for a testimonial include: cash payment; provision of services; gifts; discounts on product; free product; flights; accommodation; promise of future benefit.
However, not everything given free is valuable consideration.
As valuable consideration ‘cements an agreement or arrangement that a testimonial will be provided ‘, the following ‘would not be considered valuable consideration’:
- a sale or discount offered to all consumers equally that is not tied to the purchaser giving a testimonial;
- product samples being given out at an event (for example, a conference) or from a shopfront ‘which are not given on the basis that the recipient will make a testimonial’.
Endorsement restrictions
The TGA acknowledged endorsements ‘about therapeutic goods can influence consumers’ choices – and consumers may be ‘inappropriately, excessively or unjustifiably influenced by the status or perceived expertise of the person or organisation endorsing a product’.
Because this could happen, for example, if the endorser is a health professional, a hospital or government agency, the Code specifically restricts the types of individuals and organisations which can publicly endorse a therapeutic good in advertising.
The Code lists organisations and individuals who must not endorse therapeutic goods, including:
- a government or government authority (unless legally permitted);
- a hospital or healthcare facility other than a community pharmacy;
- employees or contractors of a government, government authority, hospital or healthcare facility;
- a current or former health practitioner, health professional or medical researcher;
- a person who represents themselves as being qualified or trained to diagnose, teat or prevent disease, ailment, defect or injury in persons.
Social media endorsements
Social media influencers, bloggers and brand ambassadors can endorse therapeutic goods ‘even if they have received valuable consideration for the endorsement, so long as they are not specifically excluded from doing so’ (refer to the list above and Section 24(6) of the Code).
However, it could be misleading under the Code ‘if consumers were not informed the person endorsing the advertised good had received valuable consideration in return for the endorsement’.
This type of arrangement is often disclosed in social media posts with words such as ‘paid partnership’.
Additionally, under Australian Consumer Law, failing to disclose that an endorsement has been incentivised by payment is considered misleading and deceptive’.
Endorsements in advertisements
Endorsements in advertisements include:
- displaying an organisation’s brand or logo;
- using an image of the endorser holding the therapeutic good or using a therapeutic good (such as applying sunscreen) without a corresponding testimonial in either text or audio;
- the endorser recommending the good for the indications and purposes consistent with the ATRG entry;
- a statement made to the effect ‘(therapeutic goods company) proudly supports (patient health organisation)’.
TGA provided this example of a ‘compliant’ social media endorsement: Jane is a social media influencer with 100,000 followers.
Beans Pty Ltd has engaged Jane to market its products which are complementary medicines.
Jane posts on her Instagram page ‘@JaneBeanAU. Paid partnership. Beans brand vitamin Z are water soluble. I recommend them to help ensure you have adequate vitamin Z intake in conjunction with a balanced diet. Always read the label and follow the directions for use.’
The endorsement is compliant as:
- Jane discloses this is a ‘paid partnership’ and includes the appropriate mandatory statements.
- The endorsement refers to the health benefits of using the advertised product; these are typical results expected from using the product and are consistent with the products indications as recorded on the ARTG.
- The endorsement is not a testimonial as it doesn’t talk about Jane’s personal use of the product.
In contrast, the TGA provided this example of a non-compliant social media endorsement: Jane is a social media influencer with 100,000 followers. Beans Pty Ltd has engaged Jane to market its products which are complementary medicines.
Janes posts on her Instagram page ‘@JaneBeanAU. Paid partnership. Beans brand vitamin Z are water soluble. I take them when I’m not eating very well. I feel secure knowing my vitamin requirements are covered.’
- The endorsement is non- compliant because:
it includes a testimonial from a person engaged in the marketing of the advertised products; - it implies vitamins can be used to replace a balanced diet in breach of the Therapeutic Goods Regulations. AMP
Visit www.tga.gov.au for more information.
Banned from both ‘endorsements’ and ‘testimonials’
Some rules in the TGA Advertising Code apply to both endorsements and testimonials.
Endorsements and testimonials must not:
- contravene any relevant provision of the Code – they must comply with all relevant Code provisions, not just the Section which relates specifically to endorsements and testimonials;
- be inconsistent with any information provided with the goods including information on the label or instructions for use;
- be inconsistent with the good’s indication or intended purpose accepted in relation to the inclusion of the good on the Australian Register of Therapeutic Goods (ARTG);
- refer to health benefits other than health benefits that are typical of the benefit expected from the good when used properly in accordance with directions.
The TGA gave these examples:
- “I tried Beans Cough Relief and it gets rid of my headaches every time!” – Beans Cough Relief does not have an indication on the ARTG about relieving headache. Relief of headaches is not typical of the expected benefit of Beans Cough Relief.
- “I used Beans Cream for my daughter’s mild eczema and it helps; I appreciate that every ingredient is safe.” – Section 9(1)(a) of the Code prohibits advertisement from stating or implying that the advertised good is safe, or without harm or side effects.
- “The Beans Institute of Health supports the use of Beans Omegas for acute pain and stiffness” – Beans Omegas is indicated for helping to maintain heart health not pain or stiffness.
Difference between ‘endorsement’ and ‘testimonial’
The TGA has carefully differentiated that ‘testimonials are a type of endorsement, and endorsement is not a testimonial’.
The distinction is:
– an ‘endorsement is a form of support, approval or sanction’;
– a ‘testimonial is a statement about a therapeutic good made by a person who claims to have used that good or to have used it while caring for someone else’.
The TGA gave these examples:
- “Downtown Football Club recommends Beans Ease Muscle Rub.” – ENDORSEMENT
- “Football takes a toll on my muscles. I run Beans Ease Muscle Rub in after training and games and it really helps relieve muscle aches.” – TESTIMONIAL
- “Beans make a muscle rub cream that can be used to ease aching muscles. It has been especially formulated to rub on easily and not be sticky.” – ENDORSEMENT
- “I was really suffering with sore muscles after footy. My doctor recommended Beans Ease Muscle Rub. I tried it and it has eased the aching I was feeling.” – TESTIMONIAL and Health Professional ENDORSEMENT
Warning for Social Media Influencers
The TGA has also provided specific guidance to the increasing number of product suppliers, bloggers, brand ambassadors and social media ‘influencers’ including endorsements and/or testimonials in their product advertising and related commentaries.
For example, the TGA gives the following example: Beans Pty Ltd makes a post about its vitamin product on its social media page and the post contains all the required mandatory statements and a ‘click- to-buy’ link.
In this case, the TGA noted Beans Pty Ltd:
- is responsible for monitoring comments on the post; and
- any comments that are not in compliance with the Code must be removed as soon as reasonably practicable.
Further information for social media ‘influencers’ can be found at the TGA’s ‘Tips For Social Media Influencers’ webpage – where the TGA warns you are likely to be considered an ‘influencer’ involved with a business selling or promoting therapeutic goods if, for example ‘you have been paid or given a product by a company to promote their goods’.
The TGA Tips include:
- Any post about a therapeutic good that you make may be considered advertising – if it is, you have an obligation to comply with the advertising requirements for therapeutic goods.
- Any comments you make about your personal experience with the goods amounts to a testimonial. Testimonials are not permitted by those involved in production, sale, supply or marketing of the goods – this includes influencers engaged by a therapeutic goods company to promote the goods, or anyone who receives ‘valuable consideration’ (payment or goods, for example) for making a testimonial.
- Understand what the TGA-approved purpose of the good is and ‘do not advertise the good for a purpose other than that – even if your experience with is otherwise’. (For information about the ‘intended purpose’, refer to the Australian Register of Therapeutic Goods.)
