Credit: Donn Gabriel via Unsplash
The Therapeutic Goods Administration (TGA) has updated its advertising guidance on what constitutes advertising for therapeutic and vaping goods, clarifying how existing laws apply across digital and traditional media.
The update to the Determining if your content is advertising guidance was revised on April 7 and is described by the regulator as a major rewrite aimed at providing clearer application of existing requirements rather than changing the law.
The TGA said the legislative definition of advertising under the Therapeutic Goods Act 1989 has not changed.
The guidance outlines how content may be assessed as advertising where it promotes, directly or indirectly, the use or supply of therapeutic or vaping goods.
It also sets out when individuals or entities may be considered responsible for advertising, including where they publish or cause material to be disseminated, or where they exercise control over its content. This applies regardless of payment arrangements.
Breaches of advertising requirements can attract civil penalties and, in some cases, criminal sanctions under the Therapeutic Goods Act 1989.
The guidance reinforces that advertising is assessed objectively based on how content appears and its likely effect, rather than the stated intent of the person responsible for it.
“Whether a statement, pictorial representation or design is intended to promote the use or supply of the goods is determined not by the actual intentions of the person responsible for making or transmitting the content, but by whether the relevant content on its face appears to be designed or calculated to promote the supply or use of the relevant goods,” the guidance states.
The regulator says the assessment is made on a case-by-case basis and considers context, including surrounding material and how an audience is likely to interpret the content.
The guidance states a wide range of communication types may fall within scope, including websites, social media, blogs, podcasts, webinars, advertorials, product reviews and media releases.
It also notes that user-generated content and influencer posts may fall within scope depending on context and promotional effect.
The TGA outlines factors that may indicate content is promotional, including calls to action, references to benefits, comparative or emotive language, pricing, availability and commercial links.
Not all content about therapeutic goods is considered advertising.
The guidance says non-promotional material may include balanced scientific or educational content, disease education, and responses to unsolicited enquiries where no promotional material is provided.
Product labels may also be considered advertising where they include promotional claims.
The guidance applies under the Therapeutic Goods Act 1989, the Therapeutic Goods Regulations 1990 and the Therapeutic Goods (Therapeutic Goods Advertising Code) Instrument 2021.
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