We Ask A Lawyer To Cut Through The BS Around Influencer Promo Rules

The Therapeutic Goods Association (TGA) has changed the way an influencer can talk publicly about a skincare or health product in a paid post.

But there’s been a lot of confusion around how it exactly affects them and what it means for your Insta feed. PEDESTRIAN.TV spoke to social media lawyer Marco Angele from Marshalls + Dent + Wilmoth Lawyers to cut through the bullshit.

What are the key changes to the Therapeutic Goods Association’s Advertising Code?

Angele said that there were four major changes to the Thereaputic Goods Advertising Code.

Their each designed to ensure the marketing of therapeutic goods is balanced, accurate and socially responsible. Therapeutic goods refer to products that directly relate to our health. They include medicine, medical devices and products that can have a therapeutic effect such as sunscreen and disinfectants.

The biggest change here is that influencers can no longer offer a testimonial of a product if they have been paid to sell a health product or are offered a free product or service. Influencers still have to disclose these incentives which was a rule introduced in a previous iteration of the Code.

The other changes refer to the way businesses advertise these products.

Under the 2021 Code, they cannot market therapeutic goods in a way that causes people undue alarm, fear or distress under the new amendment. They also need to supply consumers with all the relevant health warnings about a product prior to buying it particularly if they’re doing so online.

Angele mentioned that the TGA simplified and streamlined the mandatory statements that are required to be on these products too.

What are the biggest misconceptions about the changes that are floating around?

Angele said that people falsely claimed that social media influencers were banned from promoting health products. The reality is they can still promote an acne relief cream or pack of vitamins. They just can’t provide their own opinion on those products if it’s a paid ad.

“This just brings social media influencers in line with the same standards expected of those who make and market therapeutic goods,” Angele explained.

“If a product is not considered a therapeutic good the Code doesn’t apply. Similarly, if the influencer is endorsing the brand or good, and not providing a testimonial about the therapeutic good, they will not breach the Code.”

What’s the difference between a review and a testimonial?

A testimonial refers to a personal statement from an individual detailing their own experience about using a product. A review or endorsement is an expression of support for a product or brand that’s not based on an individual’s personal experience.

An influencer that’s paid to make a post about a product can only refer to the normal outcomes that could result from someone using the said product. These outcomes must be ones that are identified in the product’s packaging or approved by the TGA.

Angele admitted that the distinction isn’t entirely “clear cut”. He then said the TGA will likely provide more information on what this means when the Code takes full effect on June 30th.

Are influencers who are experts in a field such as licensed nutritionists viewed by a different standard under the TGA code compared to an unlicensed influencer?

Angele clarified that health practitioners and medical researchers are held to a significantly higher standard than unlicensed influencers. In fact, they’re not allowed to provide a testimonial or review of a product at all.

“The Code’s intention is to ensure that testimonials and endorsements are free from conflicts of interest and ethically sound,” he explained.

“Getting health practitioners to advertise therapeutic goods would put those individuals in a situation of an actual or perceived conflict, and that’s not in the interests of consumers or those practitioners’ patients.”

What will happen to pre-existing social media posts that haven’t been taken down when the changes take effect on June 30?

Any pre-existing social media post that’s part of a paid partnership and includes a testimonial will need to be removed by June 30th.

What sanctions will be in place for influencers who don’t follow the revised code?

Any influencers who don’t comply with the Code by then could cop a warning letter, fines and, in serious cases, court hearings and jail time. That includes any post made before the day the Code takes effect.

So Angele recommends they immediately remove any problematic posts and spend these next few months reviewing all their paid partnerships that involve testimonials or reviews of therapeutic goods.

Why has sunscreen been included in the list of regulated products when it saves lives?

When the TGA’s Code made headlines last weekend, people were confused why sunscreen was included in the list of regulated products. Many felt that it was weird for a harmless cream that lowers your chances of getting skin cancer to be on the list.

But Angele explained that that’s exactly why the advertising of it needs to be regulated.

“In the absence of these standards, individuals of influence can be rewarded for making untested and unapproved claims about goods that can result in disastrous health consequences for consumers.

“The TGA and Code ‘…ensure the marketing and advertising of therapeutic goods is conducted in a way that promotes the quality use of the product, is socially responsible and does not mislead or deceive the consumer’.

“It’s allowing people with influence to be paid to provide testimonials for health products and making claims that aren’t approved, can have disastrous health consequences for consumers.”


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