The TGA has issued a health influencer ‘ban’. This is what it means

Australian influencers have permission to endorse – or advertise – products. They must disclose an advertisement with hashtags like #Ad or the words “paid partnership”.

What they can no longer do is publish testimonials, offering their personal experience or opinions, if they have been paid or gifted a product or service for free. As of July 1, influencers will also have to remove historical testimonials that have been paid, gifted or incentivised, or risk being penalised.

So, someone can post about the benefits a product claims to have, but not make other claims or make statements from a first-person perspective. They can say “These vitamins will support skin health”, but not, “These vitamins made my skin look brighter and younger and changed my life.”

“The changes require influencers to stop making therapeutic claims that haven’t been tested and approved,” Kite says. “Ending ‘cash for comment’ arrangements is also consistent with standards in place for other types of media. This is a very sensible policy change by the TGA that protects consumers from harmful misinformation.”

The TGA rule also applies to other products, like cosmetics, if they make therapeutic use claims, such as “removes toxins”, “fades age spots”, “relieves pain”, “aids sugar metabolism” or “reduces inflammation in the body”.

The TGA is not responsible for goods that don’t purport to have health benefits, like junk food, alcohol or beauty products.

“This only relates to therapeutic goods which are those that are advertised as being for therapeutic use – that’s treating an injury, treating illness or importantly in this climate, preventing illness,” explains Suzy Madar, a partner at law firm King and Wood Mallesons.

“There are a few other ones that don’t fall into those categories that do have a therapeutic use like sunscreen, tampons, disinfectants.”

The TGA has been working on this for some time and seems to have been influenced by a concern about advertising that played on fear during the COVID pandemic, explains Madar.

Jessy Marshall is among those arguing against the inclusion of sunscreen in the new ban.

“Logic tells me we should have more influence and promotion of SPF use, not less,” says Marshall, whose clients include skincare brands, Bangn Body, Naked Sundays, tbh Skincare, and RAWKANVAS.

“I find it upsetting to hear that some of our brands will be affected by this. They’ve done the right thing and spent the money and time to get approved, surely products shouldn’t be penalised for this.”

Dr Ian Musgrave, a senior lecturer in the Faculty of Medicine, says strict rules are sadly necessary.

“While this may seem heavy-handed, advertising therapeutics, even ones as innocuous as sunscreen, requires high ethical standards,” Musgrave says.

It is not the only contentious issue. “Whether a product is therapeutic or cosmetic is murky territory. For example, a product used as a skin treatment might be a cosmetic, but as soon as it is marketed for acne, for example, then there’s a risk the product is a therapeutic good,” Madar explains. “It depends on what the advertising claims the product is to be used for. That’s something we give a lot of advice on because the distinction is difficult to make in some instances. ”

Madar doesn’t believe manufacturers will stop seeking TGA approval so that influencers can continue to make first-person claims as there are serious penalties for promoting a therapeutic product that is not registered.

As influencers transition to the new code by June 30 and revise their marketing strategies, we are likely to see fewer bogus reviews and promotions, at least in the health space.

“Influencers will be used more for more brand endorsement,” Madar predicts. “There’s a bit of a grey area between endorsement and testimonial. I think the TGA will be very keen though to make sure people stay on the right side of that.”

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