Important! New rules for influencer product advertising your business needs to know

With recent changes announced by the Therapeutic Goods Administration (TGA), here is what you need to check if you’ve ever worked with an influencer and before you start working with any influencer in the future, writes Shalini Nandan-Singh, founder of Love Your Legals.

Picture this social media post: your favourite influencer rises up out of the sea on a pristine beach, does the obligatory shake of the head, and says something like, “I love how XYZ product prevents my skin from freckling by protecting it from harmful UV rays”.

This kind of promotion or advertisement was NOT addressed by the TGA and flew under their radar – but from 1 July 2022, posts like this one will breach TGA advertising guidelines.

The new TGA legals your health-related business needs to know

The new guidelines specifically apply to influencers and ‘direct sellers and other persons who have, or will receive, valuable consideration for making the testimonial’.

Under the new rules, influencers will no longer be able to provide paid testimonials on therapeutic goods, as paid testimonials are banned in all advertising formats under the TGA Code.

The reasoning behind these new rules is to better protect the consumer by preventing advertising that is misleading and/or creates unrealistic expectations about the performance of a product.

Endorsements will be allowed (even if the endorser is paid), but paid testimonials are banned.

What is the difference between a testimonial and an endorsement?

First, let’s get some definitions straight.

Advertising: The TGA website says, ‘Any statement, pictorial representation or design that is intended, whether directly or indirectly, to promote the use or supply of the products is an advertisement.’ This includes social media posts.

An endorsement contains no reference to the influencer’s product experience. For example, your influencer could say “I use ABC product”, which would be within guidelines.

However, an endorsement becomes a testimonial when an influencer makes any claim about personal benefits of using the product. For example, “XYZ soothed the redness and itching of my eczema”.

Any form of paid testimonial does not comply with TGA legislation after 1 July 2022. The legislation applies even if the benefit or result is an authentic experience for the influencer – it doesn’t matter that they are sharing a true experience. The fact they are being paid means their testimonial does not comply.

What do the new TGA rules mean to you?

As a business owner, YOU are responsible for the content of any social media page created or managed by any ‘relevant person’ (e.g. a paid influencer), including:

• websites
• social media channels
• blog posts
• hashtags
• discussion forums
• user-generated content, such as third-party comments posted on any social media platforms controlled by your business.

All of these platforms can be considered ‘advertising’ – yes, even organic posts. It’s up to you to ensure that these all meet the TGA Guidelines about advertising.

Also, note that the new rules apply retrospectively, so content and influencer posts that made these types of ‘testimonials’ before 1 July 2022 need to be removed or deleted as soon as possible.

What do I do now?

The TGA recommends that businesses:

• Adopt an ‘acceptable use policy’ on their own social media page, warning third parties that non-compliant comments will be removed.
• Provide corrective information if they become aware of misinformation from third parties on social media channels.

You should also:

• Go back through ALL your advertising, starting with social media, and archive or delete any posts that could be seen as a testimonial.
• Set clear, specific guidelines for your business about what positive aspects you can promote and any disclaimers you need to provide.
• Contact any influencers and ask them to remove any content that doesn’t comply with the TGA standards from their accounts.
• Review the contract you use with influencers. Ensure you have specified 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.
• Seek advice from a lawyer if you are unsure about your obligations regarding the advertising of therapeutic goods.

Business provides many challenges and opportunities to learn how to do things better. This legislation protects your customers and saves you from having customers disappointed if the product doesn’t live up to their hyped-up expectations.

Complying with the TGA regulations regarding influencer advertising is far less pain and trouble than the consequences of breaching the legislation.

Unfortunately, ignorance is no excuse, so we invite you to love your legals – they are for the protection of everyone, but especially YOU.

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