On this page: The advertising scenario | Identifying non-compliance

The advertising scenario

A pharmaceutical company and a major pharmacy retailer planned to run an in-store campaign to promote a particular brand of analgesic tablet.

Within several of the pharmacy retailer's stores, the company would set up a booth, with livery of the analgesic and offering a free hot/cold pain pack with each purchase of the analgesic product.

The pharmacy retailer's website offered the ability for consumers to submit reviews of the products advertised, which the retailer vetted before publishing on the relevant product page.

Some of the consumer reviews received by the retailer for the analgesic product described it as 'safe', had 'no side effects', worked 'like a miracle' and 'better than Panadol or Nurofen, which did nothing for my pain'.

Others included statements like 'I was advised by the pharmacist to use these', the 'pharmacist recommended it' and that it was effective in managing 'severe pain' and a 'herniated disc'.

Identifying non-compliance

The hot/cold pain pack would be considered a sample as it was being provided free of charge. It would also be considered a therapeutic good because it would be represented as providing relief from pain. Making the offer of a sample in an advertisement for therapeutic goods (the analgesic) would breach section 20(1) of the Code.

Consumer reviews published on the pharmacy retailer's website would be considered testimonials and part of its advertising for the product. Any testimonials used in advertising must be documented, verified, not misleading and illustrate typical cases only. The advertising must also disclose whether valuable consideration has or would be given in exchange for a testimonial. Failing to meet these requirements would breach sections 17(2) and 17(3) of the Code. By vetting the reviews before they are published, the pharmacy retailer has the opportunity to ensure these requirements (and any other relevant requirements in the Act and Code) are met.

Advertising for therapeutic goods, including testimonials, must not state or imply that the goods are safe, have no side-effects or are miraculous. Publishing testimonials or other promotional content that includes these types of claims would breach sections 10(d)(i) and 10(d)(iii) of the Code.

In order to be lawful, a claim in a testimonial that a product is 'better than' other types of therapeutic goods would need to be consistent with the results to be expected from the use of the goods (including those demonstrated in clinical trials). Otherwise this aspect of the testimonial would breach section 17(2)(c) of the Code. Further, comparative claims (even if made as part of a testimonial) must not state or imply that comparator goods are harmful or ineffectual, which would be a breach of section 9(c) of the Code.

Suggesting endorsement of a therapeutic good by a health professional is also not permitted and would breach section 16(2)(c) of the Code.

References to the treatment of 'severe pain' and a 'herniated disc', as serious forms of a disease, condition, ailment or defect, are restricted representations. Without authorisation from the TGA, the use of these representations would breach sections 42DL(7) and 42DLB(4) of the Act.