Therapeutic Goods Advertising Requirements Guidelines for ISPs
Testimonials and Endorsements
Direct Selling: Complying with the therapeutic goods advertising requirements Summary of New Rules for Direct Sellers Regarding the Therapeutic Goods Advertising Code.
The Therapeutic Goods Advertising Code (No.2) 2018 (the Advertising Code) took effect on 1 January 2019. Advertising requirements for therapeutic goods are in place to protect the health and safety of consumers. The definition of advertise is very broad and includes any information that promotes or may encourage a consumer to obtain or use a particular product. All advertising for therapeutic goods must comply with the therapeutic goods legislation which includes the Code.
It is important that when advertising therapeutic goods, including whether in person or via social media:
- ISPs must not promote a therapeutic good for any use other than that listed in the ARTG entry
- ISPs must not promote therapeutic goods in a false or misleading way
- ISPs must not claim therapeutic goods are safe, magical or miraculous
- ISPs may only refer to claims that be valid, accurate and substantiated by the company
- ISPs may only use scientific language that is readily understood and, where it relates to a claim, that claim must reflect the body of relevant scientific evidence
Advertising must not refer to serious diseases, conditions, ailments or defects (including cancer, depression, HIV, STDs, diabetes, asthma and heart disease) without prior approval from the Therapeutic Goods Administration. Under the new Advertising Code, ISPs must not make testimonials about the therapeutic goods they sell or advertise, even if the goods are entered in the ARTG or if the testimonials relate to non-therapeutic aspects (e.g. this acne cream doesn’t dry out my skin). However, ISPs can endorse therapeutic goods (see below) and use testimonials from others when promoting therapeutic goods.
What Is the Difference Between A Testimonial and An Endorsement?
In terms of direct selling, a testimonial is a statement (written or spoken) made by a direct seller who has used a particular therapeutic good. It may specifically state that the person has used the goods or simply imply that they have. Examples of testimonials include:
- This product helps me stay healthy and fit
- This product is great. A must-have when I go on my holidays for sun protection
- I have used this product to help ease my kids’ colds
- I use Brand X vitamins.
Endorsements are statements (written or spoken) and/or images you might make, that support or encourage the use of a therapeutic good. Endorsements may be explicit statements of support or may imply your support of a product through the use of imagery. To endorse a product, you do not need to have used the product.
Advertising Code Requirements
You should check with your direct selling organisation which of the products you sell regulated as therapeutic goods. These products are subject to the Advertising Code Requirements.
Question: As a direct seller, is it ok to say my shake product burns visceral fat if it is a therapeutic good? For example: “Happy New Year Its time to cleanse: Here’s to burning visceral fat and making 6 packs.”
Answer: NO. Making such a social media post for a therapeutic good would be considered a testimonial, as defined in the Advertising Code. You are involved in the sale and marketing of the product. The Advertising Code does not allow testimonials from someone involved in the sale or marketing of therapeutic goods from being used in the advertising of therapeutic goods.
Question: As a direct seller, am I able to state what the product is used for? For example: “This supplement promotes effective healthy weight loss and lean muscle building.”
Answer: YES. You can state what the product is used for, provided you are not claiming to have used the product yourself, the purpose of the product you describe is consistent with the indications or intended purpose of the product set out by your direct selling organisation. You will still need to comply with all other applicable provisions of the Code including the weight loss provision which require you to convey the need for a healthy diet and exercise.
Question: As a direct seller, am I able to say my toothpaste whitens and brightens your teeth as I have not said I use it? For example: “This toothpaste Brightens and whitens teeth while fighting plaque formation.”
Answer: YES. If the advertising in which you make such a claim does not state or imply that you have used the good, it would not be considered a testimonial. Therefore, you could use such a claim to advertise the therapeutic goods you sell, provided it is consistent with the indications or intended purpose on the label of the good, the ARTG entry for the good, any instructions for use from the manufacturer for the good, and the advertising complies with all relevant Code requirements. Please note it is unclear whether this toothpaste product is actually a therapeutic good. If it isn’t, you can say you use it. However, you would need to be careful with the claims made as therapeutic claims can make a cosmetic product into a therapeutic good. You should check with your direct selling organisation whether this good is actually listed as a therapeutic good.
Question: As a direct seller, am I able to describe how I have used the products to help myself get well? For example: “Yesterday I was down for the count in a big way with some wicked food poisoning. Used digesta and peppermint on my tummy for support and relief while diffusing lavender and lemon fresh, for calm and uplifting vibes. Happy to be on the other side of it today and happy for oils that come in clutch for all kinds of things!! Also, super grateful for a husband who took care of not just me but the baby and the dishes and the laundry while I was laid up with the plague.”
Answer: NO. This would be a testimonial, which would be prohibited as you are involved in the sale and supply of the product which you are stating you use.
Question: I am a direct seller, my friend experienced weight loss from the products I sold him. Am I able to publish his story on my social media? For example: “It’s days like today that make me really stop and think about why I do what I do. Around a year, ago I reached out to a friend and suggested we have a chat. 12 months later this is the result, he now works out every day, spends heaps of fun times with his grandchildren & has energy to burn. However, most importantly he has had an amazing shift in his mindset and attitude to life, he was always a positive person however now we both know anything Is possible for his life going forward. He is dreaming again.”
Answer: YES. BUT, someone else’s experience with the use of a therapeutic good can only be published on your social media as a testimonial if you have verified the identity of the customer and that they have used the goods and they are not involved in selling or supplying the product (i.e. not in your upline or downline). Please note that there are also particular additional requirements for advertising weight loss products in the Code.
Question: I am a direct seller and I have experienced a weight loss from the product I sell. Would my before and after photographs be considered a testimonial?
Answer: Probably YES. Your “before” and “after “photos would have to be considered in context to establish if they constitute a testimonial. If you use the photos in a social media post and are attributed to you and a product you sell, then they would be considered a testimonial by you and therefore would be not be allowed. If they are not attributed to you or a third party, then they would be considered a claim (e.g. ‘here is what you can achieve using this product’). Where the photos are not considered a seller testimonial (i.e. they are someone else’s photos), the representations made by the photos will still need to comply with the Code, including the weight loss product requirements. For example, you can only include photos of individuals, their statistics or testimonials if the results achieved by those individuals from the use of the therapeutic goods represents results expected to be achieved on average by users of the goods.
To view the full Therapeutic Goods Advertising Requirements Guidelines for ISPs Fact Sheet click here.
The information provided is a general overview of the new Therapeutic Goods Advertising Code. If you require further more specific advice about the impact on your business, you should seek independent professional advice.