An overview of the Therapeutic Goods Advertising Code (No. 2) 2018 (the Code) followed by a detailed walkthrough of the Code with examples to illustrate the application of the key sections. Information about which version of the Code will apply to advertisements for the purposes of advertising pre-approval and complaints handling is also provided.
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TGA presentation: Therapeutic Goods Advertising Code (No. 2) 2018 - The Code basics - 20 November
1. Therapeutic Goods
Advertising Code (No. 2) 2018
The Code basics
Leanne McCauley & Alexandra Dance
Advertising Education and Assurance Section
Regulatory Education and Compliance Branch
Regulatory Practice and Support Division
Health Products Regulation Group
20 November 2018
2. Website and link references
• Details of the TGA’s advertising complaints handling framework has been published:
https://www.tga.gov.au/publication/complaints-handling-advertising-therapeutic-goods-australian-public
• TGA statement on its approach to compliance and enforcement discretion in the changeover to 2018
Code: https://www.tga.gov.au/therapeutic-goods-advertising-update-29-october-2018
• Advertising hub – www.tga.gov.au/advertising-hub
– Online training module – more to come
– Australian Regulatory Guidelines for Advertising Therapeutic Goods
• Regulatory affairs consultant / legal advice
• TGA Online advertising inquiry form - https://compliance.tga.gov.au/advertising-enquiry/
1
3. Role of the Advertising Code
• The Code is the cornerstone of the advertising framework
–Requires that advertising supports appropriate use of
therapeutic goods and does not mislead or deceive
• Current version is 2015 Code – until 31 December 2018
• The Code was revised to provide clarity and more
objective tests to support sanctions and penalties
2
4. Compliance with Advertising Code
• Advertising to the public for therapeutic goods MUST
comply with the Advertising Code
• Requirement to comply with the Code is specified through
a criminal offence and civil penalty provision in the Act:
–Section 42DM – criminal offence
–Section 42DMA – civil penalty
• For an ad to be approved under the Regulations, the
delegate must be satisfied that it complies with the Code
3
5. About the 2018 Code
• The 2018 Code was made on 31 October 2018, to take
effect on 1 January 2019
• Principles underpinning 2015 and 2018 Codes are similar
• The 2018 Code is supported by specific guidance
4
6. Code version for pre-approvals
• Ads for medicines to appear in specified media require pre-
approval under Regulation 5G
• For pre-approval decisions made:
–On or after 1 January 2019: 2018 Code applied
–On or before 31 December 2018: 2015 Code applied
• You must allow time for the process, any revisions and
Christmas shut downs
5
7. Code version applied in compliance
• For ads with current approval: version of Code approved
under
• For ads (other than pre-approved ads) that occurred:
Advertising occurred Assessed against
On or after 1 January 2019 2018 Code
Before 1 January 2019 and is no longer
occurring
2015 Code
Before 1 January 2019 and is still occurring 2018 Code
6
8. Compliance approach
• Details of the TGA’s advertising complaints handling
framework has been published:
https://www.tga.gov.au/publication/complaints-handling-
advertising-therapeutic-goods-australian-public
• TGA statement on its approach to compliance and
enforcement discretion in the changeover to 2018 Code:
https://www.tga.gov.au/therapeutic-goods-advertising-
update-29-october-2018
7
9. Scheduling of medicines
• No advertising to consumers
• S3 – only Appendix H can be
advertised
• Can be advertised to
consumers
• S8 - Drugs of Dependence – by prescription
• S4 - By prescription only
• S3 - Pharmacist only – behind the counter
• S2 - Pharmacy only
• Unscheduled – General sales item
8
11. Structure of the 2018 Code
• Part 1 – Preliminary – definitions, object, application
• Part 2 – General requirements for advertising therapeutic goods
• Part 3 – Specific rules relating to particular therapeutic goods
• Part 4 – Prohibited & restricted representations
• Schedule 1 – Medicines with specific health warnings
• Schedule 2 – Advertising to children
• Schedule 3 – Samples
• Schedule 4 – Price information
• Schedule 5 – Repeals 10
13. Section 4 - Definitions
• It is important to read the Code in conjunction with the Act
and the Therapeutic Goods Regulations 1990
–Terms that are not defined in the Code may be defined in
the Act and Regulations (e.g. ‘advertise’)
• Most Code definitions straightforward but there are some
that we will explore in detail:
–Health warning
–Prominently displayed or communicated
12
14. What are health warnings?
• In some cases, health warnings need to be included in ads
• Concept of ‘health warning’ is defined in s.4 of the Code
• The purpose of health warnings is to alert consumers to
information that will be critical to the consumer's
assessment of whether the advertised product is right for
them before purchase
13
15. Health warning definition - medicines
• Health warnings for medicines are prescribed in Schedule 1 of
the Code
• Schedule 1 health warnings are:
– an exhaustive list but may be updated from time to time
– based on RASML, permitted ingredients determination, TGO69
and TGO92
– divided into different parts for warnings for registered
medicines, listed medicines and both types of medicines
14
16. Example of medicine health warnings
1. Ingredients 2. Circumstances 3. Health warning
Hydroxyanthracene derivatives such as those from:
• Aloe
• Buckthorn
• Cascara
• Frangula
• Rhubarb
• Senna
In preparations for oral use where the MRDD contains
MORE than 10mg
Do not use if you have abdominal pain, nausea, vomiting
or diarrhoea
Ibuprofen/Paracetamol combinations In preparations for oral use Do not use if you have a stomach ulcer, impaired kidney
function, heart failure, allergic to anti inflammatory
medicines, pregnant or trying to become pregnant
15
17. Health warning definition – devices/OTGs
…a statement that is required under the Act or Regulations or Medical Devices Regulations to
be included on the label or in instructions for use that warns that a person who takes or uses the
device or goods as intended may:
(i) die; or
(ii) require hospitalisation or a longer period of hospitalisation than would be required if the
person had not taken or used the device or goods; or
(iii) require a medical practitioner to treat or prevent injury, disability, incapacity or impairment of
any bodily function, organ or structure as a consequence of taking or using the device or goods
16
18. Prominently displayed or communicated
‘prominently displayed or communicated’ is defined as:
(a) either:
(i) for a visual statement-standing out so as to be easily read from a reasonable viewing
distance for the particular media type in the context in which the advertisement is intended
to be viewed; or
(ii) for a spoken statement-able to be clearly heard and understood; and
(b) repeated as often as is necessary to ensure that it is likely to be noticeable for a
viewer or listener.
17
19. Section 5 – Object of the Code
“...to ensure that the advertising of therapeutic goods to
consumers is conducted in a manner that:
(a) promotes the safe and proper use of therapeutic goods by
minimising their misuse, overuse or underuse; and
(b) is ethical and does not mislead or deceive the consumer or
create unrealistic expectations about product performance; and
(c) supports informed health care choices; and
(d) is not inconsistent with current public health campaigns.“
18
20. Section 6 – Application
• Applies to:
– The advertising of therapeutic goods (ss.6(1))
– By any person advertising or causing advertising (ss.6(5))
• Does not apply to:
– Genuine news (ss.6(6)) by certain bodies (ss.6(7)) – including broadcasters, datacasters
and publishers
– Advertising directed exclusively to health professionals (ss.6(2))
19
21. Section 6 – Application
• How to apply the Code to a particular advertisement:
– consider its likely impact on a reasonable person to whom the advertisement is directed
(ss.6(3))
– the total presentation and context of the advertisement is to be taken into account
(ss.6(4))
20
22. Audience advertisement directed to
• Advertising may be directed to the public in general or a sub-population
• A direction may be made in many forms, including:
– An overt statement e.g. “Do you suffer from cold sores?”, “For the relief of
psoriasis”
– An implied call to capture the attention of a sub-population e.g. for the
measurement of blood pressure
– The location of the ad e.g. in a magazine for diabetics
21
23. Total presentation & context
• Total presentation: the advertisement as a whole
• Context includes:
– What other information is provided around the advertisement that could
change the take-out message? e.g. an editorial on a page opposite the
advertisement
– Does the environment in which it is displayed have the potential to alter the
take-out message? E.g. a billboard ad that is viewed when passing in a car
at speed
22
26. Section 6A & 6B – Repeals & transition
• Section 6A, by reference to Schedule 5, repeals the 2015
Code and the original 2018 Code
• Section 6B allows for a transition period for ads pre-
approved under the 2015 Code – i.e.
–Complaints about such ads will be assessed against the
2015 Code for the life of the approval
25
27. Section 7 - Price information
• Price information – definition in s.4 of Code – relates to prescription medicines
and pharmacist-only medicines only
• S.42DL(10) of the Act – advertising of prescription medicines to the public
prohibited “other than a reference authorised or required by a government or
government authority”
• Section 7 of the Code authorises the dissemination of price lists that comply
with Schedule 4 of the Code – i.e. not an offence under the Act
• Schedule 4 replaces Price information code of practice
26
28. Part 2 - Requirements for advertising all
therapeutic goods to the public
27
29. Section 8 – Approved ads
• Ads for medicines for ‘specified media’ (e.g. free-to-air
television, newspaper, billboard) require prior approval
under Regulation 5G
Arises from offence under section 42C of Act
• S.8 requires ads appearing in print media and billboards to
display the approval number in the advertisement as set
out in ss.8(3) – must be legible
28
30. S.9 – Accuracy: validity & substantiation
Advertising for therapeutic goods must satisfy the following:
(a) any claims made in the advertising are valid and accurate,
and all information presented has been substantiated before the
advertising occurs
Example: An ad promotes a medical device for identifying allergies
from a non-invasive sample from the patient. The advertiser states
the claim is supported by a small clinical trial conducted in the
1960s. Subsequent larger studies failed to reproduce the positive
findings. The claims are not valid.
29
31. S.9 – Accuracy: truthful & not misleading
Advertising for therapeutic goods must satisfy the following:
(b) it is truthful, balanced and not misleading or likely to mislead, including in
its claims, presentations, representations and comparisons
Example: an imaging device is advertised as producing 5 times less radiation
than other devices but fails advise that the amount of radiation produced by
such devices is very small. It is likely to mislead consumers:
• into thinking other imaging devices are harmful
• as to the order of magnitude of the difference in radiation produced by the
devices – even if the claim is substantiated.
30
32. S.9 – Accuracy: comparisons
Advertising for therapeutic goods must satisfy the following:
(c) any comparisons made in the advertising between
therapeutic goods or classes of therapeutic goods do not directly
or indirectly claim that the goods or class of goods being used as
the comparator are harmful or ineffectual;
Example: A head lice product is promoted as being more effective
and safer than the leading brand, which has an ingredient shown to
cause birth defects
31
33. S.9 – Accuracy: consistency with ARTG
Advertising for therapeutic goods must satisfy the following:
(d) if the goods are included in the Register - it is consistent with
the entry for the therapeutic goods in relation to that
inclusion.
Example: A product is included in the ARTG for the relief of pain in
adults aged 18-65 only. If the product was promoted for pain relief
for children, it would contravene s.9(d).
32
34. S.10 – Effect: support proper use
(a) Advertising for therapeutic goods must support the safe and
proper use of therapeutic goods by:
(i) presenting the goods in accordance with directions or
instructions for use; and
(ii) not exaggerating product efficacy or performance;
Example: A topical preparation for the relief of symptoms of eczema
is promoted for oral consumption as it works faster
33
35. S.10 – Effect: delaying appropriate treatment
(b) Advertising for therapeutic goods must…not be likely to lead to
people delaying necessary medical attention or delaying the use of,
or failing to use, treatment prescribed by a medical practitioner;
Example: a herbal medicine is promoted as an alternative to
antibiotics and people should use it as first line treatment for
conjunctivitis and other infections instead of antibiotics
34
36. S.10 – Effect: encourage inappropriate use
(c) Advertising for therapeutic goods must not encourage
inappropriate or excessive use of the therapeutic goods
Example: A medical device for alleviating snoring is promoted for
alleviating sleep apnoea. The advertising would be likely to
encourage inappropriate use.
35
37. S.10 – Effect: safe or cannot harm
(d) Advertising for therapeutic goods must not contain any claim,
statement, implication or representation that:
(i) the therapeutic goods are safe or that their use cannot cause
harm, or that they have no side-effects
Example: A herbal medicine is promoted as having a safe mode of
action and that millions of people have bought it and there have
been no adverse reports.
36
38. S.10 – Effect: sure cure
(d) Advertising for therapeutic goods must not contain any claim,
statement, implication or representation that…
(ii) the therapeutic goods are effective in all cases of a condition
or that the outcome from their use is a guaranteed or sure cure;
Example: A medical device is promoted as guaranteed to improve
lung function by 75% in COPD patients
37
39. S.10 – Effect: miraculous
(d) Advertising for therapeutic goods must not contain any claim,
statement, implication or representation that…
(iii) the therapeutic goods are infallible, unfailing, magical or
miraculous;
Example: A testimonial on a website for a medicine for relieving
cystitis states the product is miraculous and the symptoms were
gone within two hours and did not return.
38
40. S.10 – Effect: harmful consequences
(d) Advertising for therapeutic goods must not contain any claim,
statement, implication or representation that…
(iv) harmful consequences may result from the therapeutic
goods not being used - unless the claim, statement, implication or
representation is permitted under section 42DK of the Act or
approved under section 42DF of the Act.
Example: An ad for a supplement for 65+ year olds is promoted by
stating that retirees won’t be able to continue playing golf and
keeping up with their grandkids unless they use the supplement
39
41. Sections 11 - 13
Mandatory information and
statements
40
42. Overview: application of sections
Section 11 Section 12 Section 13
Ad for S3 (App H) medicine
Ad for non-S3 therapeutic good
that allows purchase without
seeing the good
(selected
items only)
Any other ad for non-S3
therapeutic good
Note: other provisions in the Code, including Part 3, will still apply in each case 41
43. S.11: Required statement – S3s
• An advertisement for a medicine containing a substance included in Schedule
3 of the Poisons Standard and Appendix H must prominently display or
communicate:
ASK YOUR PHARMACIST -THEY MUST DECIDE IF THIS PRODUCT IS
RIGHT FOR YOU
• This is the only mandatory statement required by Part 2 for S3 medicines
advertising
– Part 3 still applies – e.g. analgesics warning
• Does not apply to labels, CMIs or PILs
42
44. Section 12 & 13 requirements
Ad must prominently display or communicate:
• Basic info about the goods
• Important health information (or a prompt to consumers to read it)
• Advice to follow directions
• A symptom statement (if there are claims about symptoms
43
45. S.12: What must ads contain (goods not
available for inspection)
• This section is only for ads for goods that are not available for
physical examination by the consumer before or at the time of
purchase (e.g. internet, mail order marketing)
• Does not apply to:
– advertisements subject to section 11
– a label, consumer medicine information or a patient information
leaflet
44
46. Section 12 mandatories: medicines
Type of information Provision and the information required in ad
Basic information about
the goods
• ss.12(3)(a) – (c) – the name of the medicine, dosage form, the quantity of
the medicine
• ss.12(3)(d) - one or more of the indications for the medicine, as they appear
on the medicine’s label
• ss.12(3)(e) - a list of certain ingredients – see definition in s.4
Important health
information
• ss.12(3)(f) – an alert to the consumer to read the label or warnings (as
appropriate for the nature of the medicine)
Follow the directions
statement
• ss.12(3)(g) – ‘Follow the directions for use’ or ‘Follow the instructions for
use’ from ss.13(6)
Symptom statement • ss.12(3)(h) - If there are symptoms claims in ad, include appropriate
statement/s from ss.13(7)
45
47. ss.12(3)(f): Important health info for medicines
Are there health warnings in
Schedule 1 of the Code for the
medicine?
Do you want to include the health warnings in the
ad?
USE: ‘This medicine may not be right for you. Read the
warnings before purchase’
followed immediately by information about where the
health warnings can be found
USE: ‘Always read the label’ and
the health warnings
USE: ‘Always read the label’
NoYes
No Yes
46
48. Section 12 mandatories: devices
Type of information Provision and the information required in ad
Basic information
about the goods
• ss.12(4)(a) – (b) – an accurate description and a reference to
EITHER the trade name or another name for the device
• ss.12(4)(c) – the intended purpose or indications for the device
as they appear on label or primary packaging
• ss.12(4)(d) - a list of the ingredients if applicable
Important health
information
• ss.12(4)(e) – an alert to the consumer to read the label,
instructions or warnings (as appropriate for the device)
Follow the directions
statement
• ss.12(4)(f) – ‘Follow the directions for use’ or ‘Follow the
instructions for use’ from ss.13(6) as appropriate for the device
Symptom statement • ss.12(4)(g) - If there are symptoms claims in ad, include
appropriate statement/s from ss.13(7) 47
49. ss.12(4)(e): Important info for devices
Are there statements on the label or instructions for use for the
device that meet the definition of ‘health warning’ in section 4 of
the Code?
Do you want to include the health warnings in the
ad?
USE: ‘This product may not be right for you. Read the
warnings before purchase’
followed immediately by information about where the
health warnings can be found
USE: ‘Always read the
label/instructions for use’ and the
health warnings
USE: ‘Always read the
label/instructions for use’
NoYes
No Yes
48
50. Section 12 mandatories: OTGs
Type of information Provision and the information required in ad
Basic information
about the goods
• ss.12(5)(a) – (b) – an accurate description and a reference to
EITHER the trade name or another name for the goods
• ss.12(5)(c) – the intended purpose or indications for the goods
as they appear on label or primary packaging
• ss.12(5)(d) - a list of the ingredients where relevant
Important health
information
• ss.12(5)(e) – an alert to the consumer to read the label,
instructions or warnings (as appropriate for the goods)
Follow the directions
statement
• ss.12(5)(f) – ‘Follow the directions for use’ or ‘Follow the
instructions for use’ from ss.13(6) as appropriate for the goods
Symptom statement • ss.12(5)(g) - If there are symptoms claims in ad, include
appropriate statement/s from ss.13(7) 49
51. ss.12(5)(e): Important info for OTGs
Are there statements on the label or instructions for use for the
goods that meet the definition of ‘health warning’ in section 4 of the
Code?
Do you want to include the health warnings in the
ad?
USE: ‘This product may not be right for you. Read the
warnings before purchase’
followed immediately by information about where the
health warnings can be found
USE: ‘Always read the
label/instructions for use’ and the
health warnings
USE: ‘Always read the
label/instructions for use’
NoYes
No Yes
50
54. S.13: What must ads contain (general)
• This section is only for ads that:
– are for goods other than Schedule 3 medicines (see s.13(1)(d) - section 11
applies to these)
– do not facilitate purchase of the goods without the consumer being able to
inspect them (see s.13(1)(e) - section 12 applies to these)
• This section does not apply to labels, consumer medicine information or a
patient information leaflet (s.13(1)(a) & (b))
53
55. S.13: What must ads contain (general)
• This section also does not apply to picture/price/point of
sale ads (see s.13(1)(c)) – i.e.:
–an advertisement displaying only the name or picture of
therapeutic goods or their price or point of sale, or any
combination of these, provided the advertisement does
not contain or imply a claim relating to therapeutic use,
or any other representation
54
56. Section 13 mandatories: medicines
Type of information Provision and the information required in ad
Basic information
about the goods
• ss.13(2)(a) – (b) – a reference to the trade name of the
medicine and one or more of the indications as they appear on
label
Important health
information
• ss.13(2)(c) – an alert to the consumer to read the label,
instructions or warnings (as appropriate for the goods)
Follow the directions
statement
• ss.13(6) – ‘Follow the directions for use’ or ‘Follow the
instructions for use’ as appropriate for the goods
Symptom statement • ss.13(7) - If there are symptoms claims in ad, include
appropriate statement/s
55
57. ss.13(2)(c): Important info for medicines
Are there health warnings in Schedule 1 of the Code for the
medicine?
Do you want to include the health warnings in the
ad?
USE: ‘This medicine may not be right for you. Read the label
before purchase’
USE: ‘Always read the label’ and
the health warnings
USE: ‘Always read the label’
NoYes
No Yes
56
58. Section 13 mandatories: devices
Type of information Provision and the information required in ad
Basic information
about the goods
• ss.13(3)(a) – (b) – an accurate description and a reference to
EITHER the trade name or another name for the device
• ss.13(3)(c) – the intended purpose or indications for the device
Important health
information
• ss.13(3)(d) – an alert to the consumer to read the label,
instructions or warnings (as appropriate for the device)
Follow the directions
statement
• ss.13(6) – ‘Follow the directions for use’ or ‘Follow the
instructions for use’ as appropriate for the device
Symptom statement • ss.13(7) - If there are symptoms claims in ad, include
appropriate statement/s
57
59. ss.13(3)(d): Important info for devices
Are there statements on the label or instructions for use for the device
that meet the definition of ‘health warning’ in section 4?
Do you want to include the health warnings in the ad?
USE: ‘This product may not be right for you. Read the label/instructions for
use before purchase’
depending on whether there is a label visible on primary pack
USE: ‘Always read the
label/instructions for use’ and the
health warnings
USE: ‘Always read the label/instructions for
use’
NoYes
No Yes
58
60. Section 13 mandatories: OTGs
Type of information Provision and the information required in ad
Basic information
about the goods
• ss.13(4)(a) – (b) – an accurate description and a reference to
EITHER the trade name or another name for the goods
• ss.13(4)(c) – the intended purpose or indications for the goods
Important health
information
• ss.13(4)(d) – an alert to the consumer to read the label or
instructions (as appropriate for the goods)
Follow the directions
statement
• ss.13(6) – ‘Follow the directions for use’ or ‘Follow the
instructions for use’ as appropriate for the goods
Symptom statement • ss.13(7) - If there are symptoms claims in ad, include
appropriate statement/s
59
61. ss.13(4)(d): Important info for OTGs
Are there statements on the label or instructions for use for the goods
that meet the definition of ‘health warning’ in section 4?
Do you want to include the health warnings in the ad?
USE: ‘This product may not be right for you. Read the label/instructions
for use before purchase’
depending on whether there is a label visible on primary pack
USE: ‘Always read the
label/instructions for use’ and the
health warnings
USE: ‘Always read the label/instructions
for use’
NoYes
No Yes
60
62. Exemptions from parts of section 13:
short form ads
• “Short form ads” are:
–Radio commercials 15 seconds or less duration
–Text-only ads of 300 characters or less with no ability to
include pictures, logos or other imagery
• Short form ads are exempt from:
–The calls to action – ‘Always read the label’ etc
–Symptoms statement (ss.13(6)) 61
67. S.15: Scientific or clinical representations
• Ss.15(1) - this section does not apply to labels, CMIs or
PILs
• This section is in two parts:
–Requirements for use of scientific or clinical claims
(ss.15(2))
–Requirements for use of citations (ss.15(3))
66
68. S.15(2): Scientific or clinical claims
Where an advertisement makes a scientific or clinical claim:
• (a) any scientific or clinical terminology must be
appropriate, clearly communicated and able to be readily
understood by the audience to whom it is directed; and
• (b) any scientific or clinical representation must be
consistent with the body of scientific or clinical evidence
applicable to the advertised therapeutic goods.
67
69. S.15(3): Scientific citations
Where an advertisement contains a citation to scientific or
clinical literature, either explicitly or impliedly:
• (a) any research results must identify the researcher and
financial sponsor of the research, where the advertiser
knows, or ought reasonably to have known that
information; and
• (b) the study must be sufficiently identified to enable
consumers to access it. 68
70. Example Implied scientific
citation – reference
needs to be
provided
Scientific
information is
inappropriate and
won’t be readily
understood
These would need
to reflect the body
of evidence
available
69
72. S.16(1): Endorsements
• The endorsement provisions in section 16 do not apply to:
–Testimonials captured by section 17 (s.16(1)(a))
–Claimer for efficacy assessed non-prescription medicines
– as described in Regulations (s.16(1)(b))
71
73. S.16(2) and (2A): Endorsements
• Endorsements (express or implied) from the following are prohibited:
(a) a government authority, hospital or healthcare facility; or
(b) an employee or contractor of a government agency, hospital or
healthcare facility; or
(c) a health practitioner, health professional, medical researcher or
a group of such persons.
• Health care facilities do not include community pharmacies
72
74. S.16(3): Endorsements
Subject to conditions, endorsements from the following are permitted:
(a) an organisation that:
(i) represents the interests of healthcare consumers; or
(ii) represents the interests of health practitioners, health
professionals or medical researchers; or
(iii) conducts or funds research into any disease, condition, ailment
or defect; or
(b) an employee or contractor of an organisation mentioned above,
other than an individual mentioned in paragraph (2)(b) or (c) 73
75. S.16: Endorsement conditions
• Endorsements made under s.16(3) are subject to the conditions
that the advertisement:
– names the organisation concerned; and
– discloses:
(i) the nature of the endorsement; and
(ii) whether the organisation or employee, has received, or will
receive, any valuable consideration for the endorsement
• ‘Organisation’ defined in s.16(4) – any group, association etc
74
76. S.17: Testimonials
• Testimonial = a statement about a therapeutic good made by a
person that claims to have used that good (s.17(1))
• This section specifies three types of requirements:
– Characteristics of the person making testimonial (s.17(2)(a))
– Obligations of the advertiser before using testimonial in
advertising (s.17(2)(b) and (c))
– Information that must be disclosed in the ad about the
testimonial (s.17(3))
75
77. Who can make a testimonial for use in ads?
s.17(2)(a) - a person:
(i) whose details are verified prior to the advertising occurring; and
(ii) who has used the goods for their intended purpose; and
(iii) who is not:
(A) involved with the production, sale, supply or marketing of the goods; or
(B) an employee or officer of a corporation that is involved with the
production, sale, supply or marketing of the goods; or
(C) a corporation; or
(D) mentioned in subsection 16(2) (e.g. health professionals, staff from
government agency, hospital or healthcare facility)
76
78. Advertiser obligations when using testimonials
s.17(2)(b) and (c) – the advertiser needs to ensure that they
have:
• verified as to the use of the goods and the claims made by
the person prior to the advertising occurring; and
• checked that the testimonial is typical of the results to be
expected from the use of the goods in accordance with the
directions for use, or purpose, of the goods.
77
79. Information re testimonials to be included in ads
s.17(3) – An ad containing a testimonial must:
(a) disclose whether the person providing the testimonial has
received, or will receive, any valuable consideration for the
testimonial;
(b) disclose where another person is taking the place in the
advertisement of the person providing the testimonial; and
(c) disclose where the person providing the testimonial is an
immediate family member of an individual who is involved with
the production, sale, supply or marketing of the goods.
78
80. Example acceptable use policy
• We welcome your comments on our page but we ask that you help us comply with the Therapeutic Goods Advertising Code (the
Code).Please consider these guidelines before commenting. We will remove any comments that may result in us breaching the
Code.
• We love when you comment and tag your friends and family on our posts but we ask that you do not:
• endorse our product if you are:
– an employee or contractor of a government authority, a hospital or a healthcare facility
– a health practitioner, health professional or medical researcher
– involved with the production, sale, supply or marketing of our product
– not using your own name on this social media platform.
• imply that a government authority, a hospital or a healthcare facility endorse our product
• make comments about how a product works for you outside of its intended purpose, as these comments can be dangerous or
misleading.—our products are developed for particular purposes, as stated on the label and/or in our advertising, and these
comments can be dangerous and misleading
– make comments about serious conditions, diseases, ailments or defects, such as comments about how a product helped with
your cancer treatment or how it will relieve a tagged person’s rheumatoid arthritis pain
• We also have an obligation to make sure any advertisements we make, including endorsements and testimonials, are not
misleading. Therefore we promise to disclose:
• where a person has been, or will be, compensated for making a testimonial
• where we have actors making the testimonial, such as in cases where the original person who made the testimonial does not want
to appear in our advertisement
• where the person making the testimonial is an immediate family member of anyone employed by our business
79
81. S.18: Incentives
• Ads must not offer any personal incentive to a pharmacy assistant,
or any retail sales person who is not a health professional, to
recommend or supply therapeutic goods.
• Pharmacy assistants and other retail staff do not meet the criteria
for ‘health professionals’ for the purposes of the advertising
(s.42AA)
• Ads for these audiences must comply with the Code – including
this provision
80
82. S.19: Advertising to children
• Advertising must not be primarily directed to children
under the age of 12 years at all
• Advertising must not be primarily directed to children aged
12 years or over, EXCEPT for those products listed in
Schedule 2 of the Code, which include tampons and condoms
• Labels are excluded from this provision
• ‘primarily directed’ does not include incidental exposure
81
83. S.20: Samples
• An ad must not contain an offer of a sample EXCEPT for those products listed
in Schedule 3:
condoms
Sunscreens
Stoma devices for self-management
Continence catheter devices for self-management
• Samples can in themselves be an ad – consider Act definition of ‘advertise’
• Some samples may also be subject to state and territory laws – e.g.
scheduled substances
82
84. S.20: Samples example
NOT COMPLIANT
Have you been diagnosed with IBS recently?
Wondering if you will ever find anything to help your symptoms?
You can feel better in just two weeks – take the Bean’s challenge!
Sign up at www.beanstonic.com.au and we will email you a voucher for a free one
month supply of Bean’s Tonic from your local pharmacy
83
85. S.21: Consistency with public health campaigns
• If a relevant public health campaign of which the advertiser
knows, or ought reasonably to have known is or will be current
at the time of advertising therapeutic goods, the advertising must
not be inconsistent with the public health campaign
• Campaigns can be current but not necessarily active – e.g.
respiratory hygiene campaigns only run in cold & flu season
• Guidance contains more information on establishing current
public health campaigns
84
86. S.21: Consistency with public health campaigns
Example: There are a
range of current initiatives
in Australia to encourage
responsible alcohol
consumption
NOT COMPLIANT
Drinkers Delight
liver tonic
• improves liver function
• protects the liver from damage from
alcohol consumption – especially on
a big night out!
Cheers!
85
87. S.21: Consistency with public health campaigns
Example: National
tobacco campaign –
an ongoing campaign
to promote the quit
smoking message
across the national
population
NOT COMPLIANT
SmokeProtect
Natural antioxidants to protect the lungs
from toxins in cigarette smoke
Just one daily dose
provides all the protection you need
86
88. Part 3 - Requirements when
advertising particular types of
therapeutic goods
87
89. S.22 - Application
• Part 3 of the Code does not apply to:
– Labels (as defined in s.3 of the Act)
– Consumer medicine information leaflets (patient information
documents as defined in Regs)
– Patient information leaflets (implantable medical devices – see
s.4 - Definitions)
• These documents can still be considered promotional and have to
comply with all other relevant Code provisions
88
90. S.23 – Complementary medicines
If an advertisement for a complementary medicine includes
a claim or group of claims based on evidence of a history of
traditional use, the reliance on this traditional use and
paradigm must be disclosed in the advertisement and the
disclosure must be prominently displayed or communicated
in the advertisement.
• This provision provides clarity around expectations for
medicines advertised on the basis of traditional use
89
91. S.23 – Complementary medicines
• Some medicines rely on multiple paradigms – if this is the
case, they need to be included in the ad.
• Example:
Traditionally used in Ayurvedic medicine to relieve
sleeplessness. Traditionally used in western herbal medicine
to soothe restlessness.
Ingredient X is traditionally used in Ayurvedic and western
herbal medicine to soothe sleeplessness and restlessness. 90
92. S.24 – Analgesics
• Oral analgesic ads must prominently display or communicate:
INCORRECT USE COULD BE HARMFUL
• The ad must not imply that analgesic consumption is safe or they can
relax, relieve tension, sedate or stimulate
• Definition of analgesic in s.4 – excludes combinations of analgesic
and other ingredients for self limiting conditions
• Needs to be used in conjunction with other mandatories
• For radio ads 15s or less - FOLLOW THE DIRECTIONS FOR USE.
INCORRECT USE COULD BE HARMFUL. 91
93. S.25 – Vitamins and minerals
An advertisement for vitamin or mineral supplements must
not claim or imply that the supplements:
• (a) are a substitute for good nutrition or a balanced diet;
or
• (b) are in any way superior to or more beneficial than
dietary nutrients.
92
94. S.26 – Goods for weight management
(1) An advertisement for therapeutic goods containing any claim
relating to weight management must balance the claims with
the need for a healthy energy-controlled diet and physical
activity.
(2) Advertising of therapeutic goods containing any claim relating
to weight management must not include any reference or
depiction suggesting that the therapeutic goods will correct or
reverse the effects of overeating or over-consumption of any
food or drink.
93
95. S.26 – Weight management
(3) An advertisement for therapeutic goods containing any claim
relating to weight management must not:
(a) feature individuals in images or visual representations;
or
(b) use individuals’ statistics or testimonials; unless the
results achieved by those individuals from the use of the
goods would be expected to be achieved on average by
users of the goods.
94
96. S.27 – Sunscreens
For an ad for a therapeutic good that is or contains a sunscreen
that is claimed to prevent sunburn or skin cancer, the ad must:
• depict sunscreens as being only one part of sun protection; and
• include statements or visual representations, prominently
displayed or communicated, to the effect that:
– prolonged high-risk sun exposure should be avoided; and
– frequent re-application or use in accordance with directions is
required for effective sun protection.
95
97. Part 4 – Restricted and
prohibited representations
96
98. Prohibited and Restricted Representations
• The Act makes it a criminal offence, and provides civil penalties,
where an advertiser makes reference certain conditions (explicitly,
or by implication) in advertising of therapeutic goods without prior
approval:
– S. 42DL(7) and 42DLB(4) – restricted representations
– S. 42DL(5) and 42DLB(2) – prohibited representations
• The Act also provides that the Secretary may approve the use of
these representations under certain circumstances (s.42DF and
s.42DK)
97
99. s.29(1)(a) – medically accepted to be
a form requiring
diagnosis, treatment or supervision
by a suitably qualified health
professional?
s.29(1)(a) - Once medically diagnosed, is it
medically accepted to be suitable
for self-treatment and management?
s.29(1)(b) - Is there a diagnostic/screening, or
other kind of test for the form which requires
medical interpretation or follow-up? The form IS a
serious form
NOT a serious form
NO
YES YES
NO
NO
YES
98
100. Restricted representations
• A range of examples of what are and are not considered
serious conditions are provided in the Guidance.
• The conditions included in the Guidance make for a fairly
easy assessment of whether or not they need to be
medically diagnosed.
• Where the serious condition is implied by the
representation, this may be more difficult to assess
99
102. Permitted restricted representations
• TGA has permitted the use of certain restricted representations by
all advertisers of therapeutic goods, where the ad and product
meets the characteristics and requirements specified.
• Permitted restricted representations include:
– Neural tube defect risk reduction in pregnancy when advertising
medicines with at least 400µg folic acid/day
– representations about sleep apnoea, Obstructive Sleep Apnoea
(OSA) and Central Sleep Apnea/Apnoea (CSA) in relation to
Continuous Positive Airway Pressure (CPAP) equipment
101
104. S.30 - Prohibited representations
• Representations (express or implied) about the treatment, cure, prevention,
diagnosis (including screening), monitoring or susceptibility of, or pre-
disposition to:
– Neoplastic diseases (i.e. all types of cancer)
– Sexually transmitted disease
– HIV/AIDS
– Hepatitis C virus
– Mental illness
• Abortifacient action
103
105. Using prohibited representations
• The use of a prohibited representation may be authorised where it
is necessary for either:
– Public health interest; or
– The appropriate use of the goods (packaging & labelling only)
• There is no process for applying to use prohibited representations
– TGA will identify where it is needed
• Representations about preventing transmission of
STDs/HIV/AIDS and prevention of skin cancer through sunscreen
use are prohibited representations but will be permitted
104
107. Top tips for compliant 2019 advertising
Ensure ads contain the correct mandatory statements and
information with appropriate prominence
Check advertising for complementary medicines, analgesics,
vitamins, weight loss products and sunscreens carefully to
ensure full compliance with the express provisions
Don’t use advertising with references to diseases, conditions,
ailments or defects before checking if you need restricted
representation approval
106
108. Top tips for compliant 2019 advertising
Ensure testimonials, endorsements and scientific
representations fully comply with clarified requirements
Don’t use advertising that is inconsistent with the product’s
ARTG entry, directions, or instructions for use
Don’t use advertising that encourages people to delay seeking
medical advice or cease prescribed therapies
Don’t use advertising that conflicts with public health campaigns
107
109. More information on the 2018 Code
• The 2018 Code:
– Search “Advertising Code” on the TGA website
• The 2018 Code guidance
– Available from the Advertising Code page on the TGA website
• The 2018 Code explanatory statement
– Open the 2018 Code and click on ‘Explanatory statement’ button
• More face to face and webinar education activities planned
• Online training module planned
108
110. More general advertising information
• Advertising hub – www.tga.gov.au/advertising-hub
– Online training module – more to come
– Australian Regulatory Guidelines for Advertising Therapeutic
Goods
• Regulatory affairs consultant / legal advice
• TGA Online advertising inquiry form -
https://compliance.tga.gov.au/advertising-enquiry/
109
111. TGA website www.tga.gov.au
TGA Advertising Hub https://www.tga.gov.au/advertising-hub
• Facebook https://www.facebook.com/TGAgovau/
Twitter https://twitter.com/TGAgovau
youtube https://www.youtube.com/channel/UCem9INJbMSOeW1Ry9cNbucw
More on TGA visit……………..
110
Introduce speakers
Housekeeping – scheduled break, toilets, amenities
No photos or recording
Before we get into the details, I’d like to provide some context about the Code, in particular the 2018 Code, and this session
Firstly, it’s useful to remind ourselves of the overarching requirements relating to the advertising of therapeutic goods, including the legislative basis for compliance with the code.
As we identified in the earlier session on the legislative overview, there are a range of advertising requirements specified in the Act that have to be met. This includes the requirement to comply with the Code.
The 2018 Code applies from 1 January 2019, but was made available from 1 July 2018 to allow advertisers to familiarise themselves with the new requirements
Prior to the 2018 Code, the Code had not been substantially changed since 2007. It no longer reflected contemporary legislative drafting styles, language or best practice. Very principles based, which makes it difficult to enforce.
Code needed to be amended to clarify requirements and create more objective tests to be able to support enhanced sanctions and penalties made available with the Act changes in March 2018 (like directions and infringement notices).
Following a series of public consultations, the 2018 Code was made on 29 June 2018.
In the intervening period, we have continued to engage with our stakeholders, who have identified a range of concerns, including areas of ambiguity.
As a result a number of opportunities to improve the 2018 Code have been identified to provide advertisers with the clarity they need to apply the code correctly. These improvements are expected to be made to the Code and published this week. The improvements include a number of administrative changes (e.g. referring to the Code as an ‘instrument’).
This presentation is based on the revised 2018 Code as we expect it to be made and we have made our best efforts to ensure it reflects the current position. However, I’m sure you will appreciate that until the delegate of the Minister formally signs the Code, it’s not set in stone.
When the final Code guidance is released, it will reflect the revisions to the 2018 Code.
We don't anticipate that the proposed improvements will cause inconvenience to advertisers who have already prepared advertising based on the 2018 Code as made on 29 June 2018. Such advertisers are likely to exceed the minimum requirements rather than be non-compliant.
You should check the TGA website in the next few days for the amended Code and guidance.
Throughout the presentation, I have highlighted departures from the 2018 Code as made in purple text. However, from now on, any references to the 2018 Code, you should take to mean a reference to the 2018 Code as we expect it to be amended
Your folders include a copy of the 2018 Code as made for reference.
The version of the Code applied to applications for pre-approval will depend on when the application is to be decided.
We have been asked how we propose to carry out investigations into alleged non-compliance with the 2018 Code in the period from 1 January 2019 to 30 June 2019.
We will cover this off in the complaints handling session later on.
We understand that advertisers are working hard to update systems and processes for the new Code and that, particularly for larger companies, advertisements go through a strong governance process for approval.
Stakeholders have asked us about the compliance actions the TGA may take in relation to advertising that complies with the 2015 Code but not the 2018 Code, particularly around the prominent display of mandatory information (such as health warnings), where the advertising remains in place after 1 January 2019 (including in stores) while advertisers are transitioning their advertisements.
We will take a pragmatic approach to our compliance activity during 2019 while following our complaints management process outlined in Complaints handling for the advertising of therapeutic goods.
When categorising advertising complaints we take into account a number of factors, including the risk posed to public health and safety. Where an advertiser publishes an ad that is not compliant with the 2018 Code, but would have been compliant with the 2015 Code, in particular in relation to requirements such as the mandatory statement used, scientific citations and testimonial disclosures, this is unlikely to pose a significant risk to public health.
In the event that a complaint is received during the first half of 2019 alleging non compliance of this type, the action taken will involve a reminder about the advertising obligations under the 2018 Code, but is unlikely (in the absence of other non-compliance) to attract more serious action. In the second half of 2019, where a complaint is received or a matter of non-compliance identified, we will seek information such as the process being applied to correct the advertising along with associated dates (including the date corrective action commenced) before determining whether to apply enforcement discretion.
For specified advertising that has been pre-approved under the Therapeutic Goods Regulations 1990 on the basis of the 2015 Code, any complaints will be considered against the 2015 Code. For more information, see the changeover period.
Structurally, the 2018 Code is rather different to the 2015 Code.
This is an overview and we will examine the provision in further detail using examples.
Part One – usual preliminary material found in legislation/legislative instruments
Part 2 – sets out the requirements that apply to all advertising of therapeutic goods to consumers
Part 3 – Drills down into specific products – complementary medicines, vitamins and minerals, weight management, analgesics and sunscreens
Part 4 – This part covers what you can’t say - there are certain serious conditions that are not permitted in advertising without express approval
Schedule 1 – Warning statements – such as do not use if pregnant
Schedule 2 – Children
Schedule 3 – Samples
Schedule 4 – Price information
Schedule 5 – Repeals the 2015 Code and the version of the 2018 Code that was made in July, meaning that version will never take practical effect
Other definitions we will look at as we encounter them through the actual Code provisions.
We know that these two have been of considerable concern to advertisers and so we will explore them fully and with examples.
Health warnings are required to be included in advertisements where consumers have vulnerabilities, associated with certain conditions or where there are possible adverse outcomes from the use of the therapeutic good where used as directed. The purpose is to ensure that a consumer has e relevant health and safety information available to them when self selecting a therapeutic good, or doing so in consultation with their pharmacist.
S4 provides a definition for health warnings, directing us to Schedule One for medicines and providing a further definition for devices.
This definition was arrived at on the basis that warnings meeting this definition are information that consumers need to know before seeking out and purchasing the advertised goods.
Inclusion criteria – contraindications
Schedule one is an exhaustive list, but will be updated from time to time.
It incorporates the Required Advisory Statements for Medicine Labels, and TGO 69 and 92 Labeling orders.
These are short form health warnings, designed to be accessible to consumers and to make comprehension easy.
Mention that requirement to identify new allergens added in TGO92 won’t commence until compliance with TGO92 is mandatory (1 Sep 2020), unless the sponsor has chosen to comply with TGO92 instead of TGO69 before this date.
Does your product contain an ingredient from column one?
In the circumstances identified in Column 2?
Then include the warning in column 3!
Questions at ASMI seminar –
In the new Schedule 1 for medicines, what’s included – active and/or non-active ingredients?
We are we disclosing excipient warnings (like gluten etc) in health warnings?
The 2018 Code allows for the use of the statement 'THIS PRODUCT MAY NOT BE RIGHT FOR YOU. READ THE LABEL BEFORE PURCHASE' as an alternative to the inclusion of the applicable health warnings.
Health warnings, plus other important information are required under the 2018 Code to be ‘prominently displayed or communicated’.
This is not a new concept – the need to ‘prominently display or communicate important information in advertising features in the 2015 Code too. However, we have clarified the definition and we are producing specific examples to demonstrate how the definition is interpreted and applied.
Guidance and education, including the examples we will hand out today, will include clear examples of statements that meet or exceed the requirement to be 'prominently displayed or communicated'. We will look at some examples later.
As with many aspects of advertising, what is reasonable is informed by context. EXAMPLE: Riding motorbike on highway - ourdoor advertising? What font size would be easily read and understood?
Muttering and speaking really fast may not be considered clearly heard and understood
With TVC it is preferable that both elements fulfil the requirements.
Questions at ASMI seminar –
What’s a “reasonable viewing distance”? For outdoor advertising we are being asked for exact dimensions and distance away from the viewer, including those in a moving car. We need recommendations/guidance on this.
In a TVC with both visual and spoken do both elements need to fulfil the requirements?
Principles underpin how we regulate the advertising of therapeutic goods to Australian consumers.
Imports the concept of Quality Use of Medicines and reflects those principles in application to all therapeutic goods.
Ultimately supports consumer safety and favorable public health outcomes.
There is a very strong consumer focus, making sure that advertisers to not behave in a way that misleads or deceives the consumer or makes claims about a product that are unfounded.
EG – Medical breakthrough on the news, or a positive surgical outcome
What is the takeaway message for the consumers?
Think about your target audience and their particular vulnerability. It is about the impact on the person who would be purchasing your goods, based on the claims you are making. You may be marketing to the world at large, or to a particular sub population. That sub-population may have specific vulnerabilities.
What does your ad in totality demonstrate? Do not consider the words and images separately – your words may be compliant but the accompanying image may denote a miraculous outcome.
NUANCE
IT DEPENDS
CONTEXT
What are the audiences for each of these ads?
What is the reasonable consumer likely to be like in each case?
Think about the population subset
Characteristics
Vulnerabilities
Example showing how presentation & context important and how reasonable consumer assessed
So on the left, we have an editorial article about IBS and then an ad for an IBS product on the right. How is a consumer likely to interpret the ad after reading the article?
What sort of reasonable consumer is this ad directed to?
Won’t talk about price information any further today – if you have questions, see me in the break
Number does not have to be prominently displayed
A ‘valid’ claim is one that is authoritative, sound or well-founded, while an ‘accurate’ claim conforms to the truth and is free from error (relying on the ordinary meaning of these words in the Macquarie Dictionary).An accurate claim is a truthful claim and is correct.
Questions at ASMI seminar –
What’s the definition of consistent when it comes to wording between the ARTG and advertising (example given: some ASMs are asking that the wording be absolutely identical)?
In relation to permitted indications what’s the advice in relation ‘can/may’? ASMs need guidance.
Also note the IBS example we discussed earlier with the editorial one side and ad on the other – combination of two would result in delaying appropriate treatment
Therapeutic goods exert a therapeutic effect on the human body. Therefore, the good may also have unintended consequences or trigger an adverse event.
For these reasons, this section of the Code specifically prohibits the advertising of a therapeutic good as safe or having no side-effects, even for specific patient populations or particular dosages.
This requirement applies even if you think you have evidence to substantiate such a claim.
Example
* implying that the consumer’s health may suffer by not using the advertised good
* implying that the use of an advertised good is essential for normal health
This table shows the interactions between sections 11, 12, 13 at a high level.
There are of course different requirements within sections 11, 12 and 13 but this shows which section(s) apply to which types of ads – we will go through these in detail now
Irrespective of whether section 12 or 13 applies to your ad, there are some fundamental pieces of information that must be included.
Remember these are just the minimum requirements – advertisers may choose to provide more information than specified in this section.
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
Questions at ASMI seminar:
What order do the mandatories have to appear in? Does “this medicine may not be right for you” have to come first?
s.12 medicines with a health warning – where do the health warnings sit in internet advertising – on the banner ad or page that introduces the product; or on the ‘buy now’ page; or both?
Is there any flexibility in the way the mandatories are written –‘or words to that effect’?
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
Question at ASMI seminar- What’s the expectation in relation repetition (prominently displayed) for ads on the internet where things move? How often do the mandatories need to be repeated? What about in a 30sec TVC, or websites that you scroll through?
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
In addition, the ad must include any additional statements required by Part 3 of the Code as appropriate to the type of product
Question from ASMI session - How does the requirement for mandatory statements plus prominently displayed work for twitter, Instagram, something less than 300 words, or search outputs? You need a framework for digital – people might see the 300 words as a ‘get out of jail free’ card and stay under this limit to avoid the mandatories.
Subsection 15(3) of the 2018 Code will be amended to clarify the information that needs to be included in advertising that contains a citation to scientific literature.
The 2018 Code guidance will also be updated to explain what is meant by the reference in this section to 'implied' citations. For example, a reference to 'claims being clinically proven' implicitly makes a citation to scientific literature; in this case, the research results must identify the researcher and the financial sponsor. A statement of the duration of the therapeutic use of the good, for example, that it works for up to 8 hours, makes no citation because there is no explicit or implicit mention of the existence of scientific literature in support of the claim. In this case, no obligation arises under section 15.
For clarity, we are making references consistent within the section to demonstrate it covers both scientific and clinical representations
Questions from ASMI session –
s.15 what happens if journal articles can only accessed by subscription, should they be referenced?
What if the name of the article/journal includes a restricted representation? (took on notice)
If an advertisement doesn’t say ‘clinically proven’ then does s.15 apply?
What do you do if you are relying on an unpublished study, or something that is commercial-in-confidence?
What about an R&D study done by the company actually developing the product, can you cite this?
But what won’t it comply with?
The claimer was the subject of a consultation in May-June 2018.
When a decision is made in relation to the claimer, the Code will specifically exempt the claimer from the operation of the s.16 provisions. A similar arrangement has been made for the s.42DL(9)(c) prohibition in the Act.
Question from ASMI session: s.16(1) If something is developed in house in a hospital by a particular doctor, is this an endorsement?
A new subsection (ss.16(2A)) is proposed to clarify that health care facilities do not include a community pharmacy
Question from ASMI session - s.16(2) how does claiming something is scientifically formulated now work?
(2)(b) and (C):
(b) an employee or contractor of a government agency, hospital or healthcare facility; or
(c) a health practitioner, health professional, medical researcher or a group of such persons.
Question from ASMI session - What if a hospital helps develop a specific formulation, what wording would we use (s.16(3))? (took on notice)
For the purposes of subsection (3), an organisation means any group, association or body (whether incorporated or unincorporated), of a kind mentioned in paragraph (3)(a ).
Proposed change, principally to clarify that an organisation for the purposes of the above that represents consumers, health practitioners, health professionals or researchers, may be either incorporated or unincorporated.
Person may have used the goods themselves or on someone they are related to e.g. a child or parent
Where the person used the product on someone else in a commercial context (e.g. service delivery), it would be an endorsement
Hand out testimonials examples and discuss if there is time
Questions from ASMI session –
How do we express a testimonial on Instagram or in a blog?
What if the testimonial if fine except for one word – what do we do?
What’s the tipping point between a paid testimonial and that person actually marketing a product (like a brand ambassador)? (took on notice)
(iii)(C) just a minor wording change for consistency
An ad does not need to disclose where an actor is being paid to take the place of the testifier in the ad – only if valuable consideration was given to the person providing the testimonials
s.17(3)(a) is likely to be amended for consistency with s.16(3)(d)(ii) – endorsements – required to disclose whether any valuable consideration has been or will be provided.
We received feedback that in relation to s.17(3)(c), “a relative or associate” was too ambiguous and potentially too broad. As such, we are likely to constrain it to “immediate family member”.
If the content is non-promotional (e.g. educational), the Code will not apply.
However, the inclusion of an offer of a personal incentive to recommend or supply particular goods is likely to result in the content being considered an advertising.
This provision has changed somewhat from the 2015 Code. Under the 2015 Code, any of the items listed (including tampons and condoms) could be advertised to children under 18.
However, children are a particularly vulnerable population group in terms of advertising. Many children are unlikely to have developed sufficient knowledge or reason to make responsible choices in relation to therapeutic goods or to understand the generally persuasive intent of advertising. Choices about when and how therapeutic goods may be appropriate for them are rightly made by the adult who looks after the interests of the child. It would therefore not be ethical or socially responsible to target children in advertisements for therapeutic goods. There are exceptions in relation to specific therapeutic goods for children 12 years and over, consistent with their increasing independence from adults.
These requirements do not apply to labels, on which characters, colouring, fonts and other artefacts may be used to identify therapeutic goods for use in children, including to differentiate children’s dosage forms from adult preparations.
The concept of ‘primarily directed’ to a particular audience does not capture incidental exposure by these audiences. For example, if an 11 year old was incidentally exposed to a tampon ad by looking over her 14 year old sister’s shoulder while looking at Dolly magazine online, this would not be considered a breach of this provision. But if the ad appeared on the Nickelodeon website, which specifically targets younger children, it would be a different story.
We have also received some questions about a potential conflict between this provision and the fact that many pharmacy assistants and other sales staff are under 18. However, where such materials were directed to such staff in general – as opposed to being primarily directed to the younger staff – it would be unlikely to contravene this provision.
Also, if educational, the Code (including this provision) won’t apply at all
We are also likely to add lubricants (other than eye lubricants) that do not contain a local anaesthetic, stoma and continence catheter products for self management to the list of sample exemptions.
Have the definition of advertise from the Act available for point 2
The stoma and catheter entries were added in acknowledgement of a government program under which nurses make recommendations to stoma patients about which products approved under the stoma appliance scheme may be suitable for them and people are given samples to use to see if it is right for them
If there is a good public health reason to do so, we may add more items down the track
The object of the 2015 Code is to ensure that the marketing and advertising of therapeutic goods to consumers is conducted in a manner that promotes the quality use of therapeutic goods and is socially responsible.
In order to be consistent – or at least not at odds - with these objectives, advertising for therapeutic goods must not be inconsistent with public health campaigns. As such, there is now an express requirement in the 2018 Code to this effect.
Change (in purple) proposed to reflect feedback from stakeholders during recent consultation period.
Public health messages are an investment by the Government to improve public health and safety and are based on considerable research and expert advice. The objective of this provision is to ensure that that advertising of therapeutic goods does not undermine or otherwise diminish the message contained in government public health campaigns.
Sections 5 and 21 of the 2018 Code will be amended to clarify that only those public health campaigns of which the advertiser could reasonably be expected to be aware will be relevant to compliance with these provisions.
This reflects our expectation in practice that advertisers should not need to be aware of isolated public health campaigns (e.g. conducted by an individual local council) to ensure compliance with this aspect of the 2018 Code.
Referring to indications that are supported by evidence of traditional use inappropriately in advertising for complementary medicines has the potential to mislead consumers about the type of supporting evidence for the medicine.
For this reason, where the advertiser is relying on traditional evidence to support an indication referenced in an advertisement, the advertiser must clearly disclose to the viewer that this is the case and identify the paradigm of the traditional use. This information must be clearly disclosed in the advertisement.
Paradigms include, but are not limited to:
traditional Chinese medicine
Ayurvedic medicine
western herbal medicine
homoeopathy
To be considered to be prominently displayed or communicated, this information would need to be portrayed as part of, or in very close proximity to, the therapeutic claims.
Question from ASMI session - s.23 what about products developed for a particular group/category – do you have to cross reference to other categories (like traditional medicine)?
Under the 2015 Code, the analgesics requirements were generally well understood and applied. In 8 years, the CRP only upheld a handful of complaints in relation to those requirements.
But it’s still an important requirement to have – the misuse and overuse of oral analgesics in Australia is still a public health concern so it’s appropriate that advertising for such goods reflect appropriate use and not inadvertently encourage inappropriate use.
The 2018 code has retained the principles from the 2015 Code. The definition of ‘analgesic’ has been moved to the Definitions section:
analgesic means a medicine for internal use (i.e. oral), containing one or more of the following substances intended for the relief of aches and pains:
(a) salicylic acid, its salts, its derivatives (including aspirin) and their salts;
(b) other non-steroidal anti-inflammatory drugs;
(c) paracetamol;
not including such a medicine where:
(d) the condition for which it is designed is a self-limiting condition; and
(e) the substances mentioned in paragraphs (a)-(c) are combined with one or more other active ingredients; and
(f) the other ingredients have been included in the medicine for indications other than the relief of aches and pains.
Note the requirement to prominently display or communicate this warning. It will also need to be displayed in conjunction with other warnings prescribed under sections 11, 12, 13 and 14 as applicable.
The 2015 Code effectively exempted radio ads 15 seconds or less from including this statement (they only had to state Always read the label. Use only as directed by a healthcare professional). This exemption no longer applies. However, such ads will be exempt from the requirement to state Always read the label (s.11(5)) and “If symptoms persist…”. Reflects that many analgesics are now available outside pharmacy.
Question from ASMI session - s.24 does this need to be next to the product or could it be in the terms and conditions at the bottom of an advertisement?
This requirement is largely unchanged from the 2015 Code and is pretty straight forward.
Proposed change to clarify the intention is that this applies to both primary and secondary sunscreens
Australia has one of the highest rates of skin cancer in the world. Melanoma is the third most common cancer (Melanoma Institute Australia – website accessed 13/10/18).
The s.26BF permissible indications and s.26BB permitted ingredients determinations require sunscreens to carry a label statement to the effect that “Prolonged exposure to the sun should be avoided, it is important to wear protective clothing, hats and eyewear when exposed to the sun.”. Labelling also needs to include information about reapplying regularly.
In order for advertising of sunscreens to be socially responsible, it needs to reflect these conditions of use.
PROHIBITED REPRESENTATIONS – DO NOT USE UNLESS SUBJECT TO AN EXISTING APPROVAL BY THE DEPARTMENT OF HEALTH
RESTRICTED REPRESENTATIONS – YOU MUST APPLY TO USE AND YOUR APPLICATION MUST BE APPROVED PRIOR TO YOU USING THEM
PUT YOURSELF IN THE SHOES OF THE CONSUMER WITH THAT CONDITIONS
CONSIDDER THEIR VULNERABILITIES
CONSIDER THE PUBLIC INTEREST
CONSIDER THE IMPACT YOUR ADVERTISING MAY HAVE
IF IN DOUBT, ASK A REG AFFAIRS CONSULTATANT, YOUR REGULATION TEAM, CONSULT THE GUIDANCE, OR CONTACT US
WHY? Why do we care about the use of these representations?
We know therapeutic goods are not ordinary consumer goods, that is why they are subject to further regulation. Restricted and prohibited representations require scrutiny because of the enhanced vulnerabilities of particular consumers.
The use of these representations requires detailed consideration by the TGA to ensure such use does not compromise individual or public health and to ensure that the representations are accurate, balanced and not misleading.
We will start by considering restricted representations, as you may find you have a product you want to advertise that includes representations that require approval
WHAT IS A RESTRICTED REPRESENTATION?
It is a serious form of a disease, condition, ailment or defect.
How do we know if it is a serious form?
The guidance includes a ready reckoner – table to assist with some common conditions
WHERE THE SERIOUS CONDITION IS IMPLIED BY THE REPRESENTATION IT IS MORE DIFFICULT TO ASSESS: SUCH AS OUR DIABETES EXAMPLE
REFER TO EARLIER SLIDE
Question at ASMI seminar - What happens if you have a restricted representation, are these included in the health warnings?
WE DO APPROVE THE USE OF RESTRICTED REPRESENTATION, UNDER CERTAIN CIRCUMSTANCES:
We will approve the use of a restricted representation where it is accurate, balanced and not misleading; and
Where it meets the public interest criteria:
Does not take advantage of the vulnerable consumer
Be likely to result in the consumer not seeking timely advice
Negative impact on public health
Example to consider:
Lactation support supplement– assists with mood, stress and mild anxiety
The hub also contains Regulatory decisions and outcomes