Can influencers still promote therapeutic goods?

So by now you’d have heard, read or (in some cases) freaked out about THAT Insta post from The Australian. It's caused quite a stir!

The post announced that due to new regulations from the Therapeutic Goods Association (TGA), influencers will be banned from being paid to promote and market products such as vitamins and skincare as of 1 July 2022.

Judging by our DMs, everyone immediately started worrying that influencers would no longer have a career – not to mention that businesses would no longer be able to rely on influencer marketing.

However, things are not as they seem…

So, what exactly are therapeutic goods?

Well, according to the TGA, therapeutic goods are “medicines or medical devices that have a health effect on the human body” – so basically, products that relate to our health and wellbeing.

They include:

Medication
Vitamins and supplements
Sunscreen
Skincare for acne and medical skin conditions
Cosmetic products that claim or advertise therapeutic use (e.g. a foundation containing SPF protection)

And... what exactly are the changes to the Therapeutic Goods Act?

The changes are happening as a way of tightening up the way businesses can advertise their products. This means that businesses must:

Provide consumers with proper health warnings as part of all product descriptions
Not market their products in a way that will cause fear or distress (e.g. “If you don’t use this hair product, your hair will fall out”)

However, the pièce de résistance that has everyone in a tizzy relates to how the new rules will impact influencer marketing.

The regulations state that influencers can no longer use personal testimonials to promote therapeutic goods. If a business has provided an influencer with any kind of compensation in exchange – including money, gifts, products or samples – this rule applies. That’s because any kind of compensation comes with the expectation that the influencer will promote the goods.

Well, shite! How are we all supposed to find out about the next big thing in skincare?!

All is not lost. The key term here is personal testimonials.

What’s the difference between personal testimonials and whatever’s actually allowed?

A personal testimonial is just that: personal. It only applies to the person providing an account of their experience with the product. When it comes to therapeutic goods, everyone’s experiences will be different – so it’s potentially misleading for an influencer to promote your product based on how it worked for them.

Essentially:

If the influencer has purchased your product with their own money – they can provide a personal testimonial
If you are providing the influencer with compensation – they can still promote the product, but they can only use verified claims to do so

So, influencers can promote your product by restating things you’ve already advertised about it. They just can’t share their personal experience with the product, or how it’s affected them.

Compare the pair:

“I’ve been using Foundd’s hair serum for the last 4 weeks – it contains tea tree oil, caffeine and minoxidil, which can help your hair to grow faster!”

As opposed to...

“Foundd’s hair serum has made my hair grow 10 inches in 4 weeks! It’s made my locks so shiny and soft!”

See the difference? The first one only provides information that’s been advertised by the business (yours). The second provides a personal testimonial.

Got it! So what’s next?

Here are our top tips for getting your ducks in a row before the new regulations come into full effect in mid-2022...

Review your current marketing strategy so that moving forward, you are complying with the new regulations
Go back through your posts and remove any that provide influencers’ personal testimonials for therapeutic goods (influencers – this applies to you, too!)

If you are using influencers to market your products, understand what they can and cannot say when promoting therapeutic goods
Ensure that you have a legally legit Influencer Agreement in place
Get in touch with your friendly neighbourhood lawyer (hello, welcome, Foundd is here to help!) if you're feeling unsure about the new rules

***Disclaimer. Please read!!***

This article is for general information purposes only and should be used solely as general guidance. It does not and is not intended to represent legal advice or other professional advice.