On 1 January 2019, the Therapeutic Goods Advertising (2018 Code) will replace the 2015 Code.

What is happening?

The 2018 Code sets out the minimum requirements that advertisers must follow when promoting therapeutic goods to consumers. In essence, it aims to ensure the quality use of therapeutic goods and acts against advertising that misleads or deceives consumers.

Why does it matter?

Therapeutic goods include items such as medicines, first aid materials, vitamins, supplements and medical testing kits (including pregnancy tests). The 2018 Code introduces a number of changes, many of which are relevant to certain retailers, including:

  • the term “advertise” will include any material intended to promote the use or supply of the goods (extending to indirect promotion, packaging, labelling and complementary information supplied)
  • the content of advertisements when offering goods that are not available for physical inspection before purchase (ie online sales)
  • disclosure is required for testimonials where any valuable consideration has been provided to the person giving the testimonial, or where the person is a relative/associate of an individual involved with the production/sale/supply of those goods
  • advertising cannot be primarily directed to children under the age of 12 years
  • health warnings/instructions must be included on the labels of goods that may lead to death, hospitalisation, or treatment by a medical practitioner for injury, disability, incapacity or impairment.

Failure to comply with the 2018 Code could result in action by the Therapeutic Goods Administration and range from an “educational” letter to criminal prosecution and/or civil action for persistent/flagrant breaches.

What action should you take?

If marketing therapeutic goods in Australia:

  • become familiar with the 2018 Code and make any adjustments to existing advertisements, including those appearing online
  • seek advice to clarify your obligations and to see whether you are in breach of the 2018 Code.

This article was authored by Daniel Proietto, a Partner at Lander & Rogers.