Australia’s drugs regulator has admitted that new social media advertising laws restricting the way therapeutic goods such as vitamins, supplements and skin products can be advertised on social media will be not be possible to enforce in cases where brands and social media influencers are posting from overseas.
The laws come into effect from July, and will bring social media advertising of therapeutic goods in line with regulations that apply to radio, television and other mediums.
Anyone who receives payment or other incentives to promote a product, whether it’s vitamins or an anti-fungal cream, will not be allowed to offer a testimonial on social media based on their personal experience of using it. This includes using “before and after” photos – a hallmark of many promotions for spurious products that claim to promote weight loss.
Influencers can still receive payment to support or endorse the product, and must continue to make it clear in any endorsement that they have been paid. Prescription and certain pharmacist-only medicines are prohibited from being advertised directly to the public altogether, and this has always been the case.
Once the changes come into effect, an influencer can say that a herbal product “promotes hair growth” but they can no longer say: “My hair grew five inches after using this”. Testimonials from customers who bought the product themselves and who did not receive any incentives are still allowed.
Any historical promotions on social media that have been incentivised and include testimonials, or make claims beyond what the approved purpose of a product is, must also be deleted before July.
The changes have distressed some influencers who built their brand on being paid money or given freebies in exchange for their testimonials about products that claim to lead to weight loss, glowing skin or better health.
“For beauty creators, this has the potential to be career destroying,” a self-described lifestyle influencer with more than 40,000 followers from the ACT wrote on Instagram this week in response to news of the regulations.
“Forcing thousands of creators to delete their life’s work is not a fair resolution to the real issues that these laws are attempting to solve,” she wrote.
An “influencer coach” based in Perth with more than 400,000 followers wrote on Instagram that the TGA changes are “basically saying that consumers are too dumb to make an informed decision before making a commitment to purchase”.
But advertising executive and strategist Dee Madigan described their protestations as “fairly inane”.
“Governments regulate to protect people from their own stupidity all the time,” she said. “We know you’re 80% more likely to buy something at the recommendation of a friend than a brand, and influencers, to many people, are like aspirational friends that they follow on social media.”
Madigan said running an advertisement on television involves getting clearance from a regulatory board, and that it is “really, really difficult” get advertisements making health claims past advertising regulators.
“But I think the internet for a long time has been put into the too-hard basket,” Madigan said. “It’s seen as too tough to regulate. But I think it could work really well for platforms like Instagram if they cooperate with the regulators on this.”
Dr Gemma Sharp, a clinical psychologist and body image expert with Monash University’s department of psychiatry said vulnerable people with body image issues and eating disorders could be particularly susceptible to the health and wellness claims being made by social media influencers.
She said despite the claims of many influencers that they are independent, “we’re all being influenced by each other, there is no such thing as real objectivity”.
“That’s why disclosures and transparency around their claims are so important,” Sharp said. “However, social media moderation is a minefield. We’re retrospectively trying to moderate something that has been around for 15 years. I think enforcement will be interesting. How are the regulators going to police this?”
Regulator the Therapeutic Goods Administration received 1,997 reports of alleged non-compliance with the advertising requirements of the Therapeutic Goods Act between 1 July and March across all mediums including online, radio, in stories and clinics and on television.
Australian public health doctor Ken Harvey, who is a researcher in consumer protection and evidence-based medicine, said the need for the TGA to prioritise complaints due to the volume they received meant “most are ignored, even those complaints in what the TGA say are high priority areas”.
Harvey wants all testimonials around therapeutic goods banned, even those not paid for, because “anecdotes do not equal strong evidence”. He believes the advertising guidelines should also ban endorsements altogether.
“I think there’s a question about whether testimonials and endorsements do actually enhance the use of medicines or allow people to select products rationally,” he said.
“The other point is, I don’t really believe that these new rules are enforceable. If someone tosses money underhand to an influencer, and they don’t declare it, who’s going to know?”.
A spokeswoman for the TGA admitted that content posted by a social media influencer based overseas would be unlikely to be within the TGA’s jurisdiction, whether or not the content is visible to audiences in Australia.
But she said the TGA had already established relationships with Twitter, Instagram, Facebook and other platforms to support compliance with the law changes through their own policies.
“In addition, as part of its communication activities to support the transition to the new Advertising Code, the TGA will be publishing a series of posts on Twitter, Instagram and Facebook to educate influencers on how to comply with the rules with visual examples of what is acceptable and what is not,” she said.
“The TGA encourages the reporting of posts that consumers suspect may be in breach of the Code and advertising law.”
Therapeutic goods are not ordinary consumer goods, she said. They can impact health and carry side effects.
“Personal testimonials can be inappropriately persuasive to a vulnerable audience who are seeking products for their health and sometimes very serious health conditions,” she said. “The new Code clarifies the type of testimonials that can be used in advertising and ensures that testimonials are unbiased and not influenced by commercial interests or personal gain, while still allowing the advertising of goods without testimonials.”
