There is no doubt that influencers have become part of a powerful marketing strategy; however, advertising in the health industry just got a whole lot harder. With recent changes announced by the Therapeutic Goods Administration (TGA), here is what you need to know before you start working with an influencer and what you need to check if you’ve worked with an influencer in the past.

Small Businesses, Social Media and the TGA

The TGA is Australia’s regulator of medicines and medical devices, including regulating how these products are advertised. The TGA also regulates products used for therapeutic use, such as cosmetics that make claims about ‘reducing inflammation’, ‘reducing pigmentation’, ‘improves energy’, etc.

When it comes to advertising these products, specific requirements from the legislation need to be adhered to. To be clear, you don’t have to pay for the advertising to be considered ‘advertising’. I.e. an organic post on social media is considered advertising.

The TGA considers advertising as many promotional activities, which you can read more about here.

Business owners must manage compliance with the TGA obligations, including on their websites, social media platforms, blogs and more. Business owners are also responsible for user-generated content through a paid or incentivised influencer or those who have created content about your product of their own volition, where your business controls the platform.

What Has Changed in the TGA Guidelines?

The TGA has made it clear that there is a difference between an endorsement and a testimonial. In Australia, from 1 July 2022, influencers (or anyone who falls under these TGA rules) will be able to ‘endorse’ a product, for example, stating, “this cream supports the reduction of hyperpigmentation”, with a disclosure in the copy that it’s an #ad or #paidpartnership. Influencers can still be paid but not share their experience or results.

Australian influencers can’t say something like, “this made my hyperpigmentation disappear.” A personal testimonial is not allowed according to the TGA guidelines. The legislation applies even if the result is an authentic experience for that individual (which a testimonial always should be, but that’s a story for another day).

Importantly, these rules apply retrospectively, so content and influencer posts that made these types of ‘testimonials’ before 1 July 2022 also need to be taken down ASAP.

How Do I Safely Work with Influencers Going Forward?

Remember, despite the media focusing on influencers regarding this advertising requirement, testimonials aren’t allowed for any advertising where your product falls under the TGA requirements. Even you, as the business owner, can’t make unverified claims about what your product can do.
If your business falls into this category, start by going back through ALL your advertising, starting with social media, and archive or delete any posts that could be seen as a testimonial.

Next, set clear, specific guidelines for your business about what positive aspects you can promote and any disclaimers you need to provide.
If you have relationships with influencers, contact them and ask them to remove any content that doesn’t comply with the TGA standards from their accounts. You may need to give them specific directions about posts that need to be deleted rather than assuming they will understand the TGA guidelines.

Finally, review the contract you use with influencers. Make sure you have identified what content is ok for them to publish and what is not. We also recommend creating a clause that requires the influencer to delete/remove content you have paid for if or when you request it.

There is always so much to learn in business, and legislation is often changing. I’m here to support you through your entire business journey. Please don’t sit back and wait for something to change with this decision; it won’t. Book a consult to discuss and set a plan for your business legals. We know you will Love your Legals again.