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Last week the Therapeutic Goods Administration (TGA) called BS on health claims made by JSHealth Vitamins, issuing two infringement notices totalling $26,640.
JSHealth Vitamins sell a range of supplements over-the-counter through Chemist Warehouse, select supermarkets and a range of online distributors. The TGA claim, JSHealth Vitamins made claims that their product could treat or prevent severe health conditions, including cancer and Alzheimer’s disease. These statements are restricted by the TGA and can’t be used without permission. Therefore, the claims were in breach of the Therapeutic Goods Act 1989 and the Advertising Code.
Over the counter supplements are formulated to maintain nutrient levels in the healthy population. They’re typically at a low dose or a form that’s not readily absorbable because they’re not designed to correct nutritional deficiencies or to have a therapeutic benefit (e.g. reduce inflammation or reduce period pain). However, because they’re so accessible, they’re so safe that Joe can go to 5 supermarkets and buy the same supplement, consume them on the same day and have minimal consequences. JSHealth Vitamins sells a range of over the counter supplements designed to increase hair, skin and overall health and wellbeing, many of which are registered with the TGA.
Supplements available by prescription from a practitioner are considered “practitioner only” supplements and are different to those available over the counter. These are prescribed at a higher dose to have the desired therapeutic effect. Because they’re available in a higher dose and a readily absorbable form, they can be dangerous and interact with medications and supplements, so caution is required. It is recommended to talk to a practitioner before taking any supplements.
The TGA has been making moves this year to regulate the health industry. In the TGA Advertising Code (updated March 2022), advertising cannot contain testimonials and endorsements made by health professionals and others. This change has affected the use of influencers by brands to endorse and promote health products. Any post about a therapeutic good may be considered advertising, and any comments made about a personal experience with a product are considered a testimonial.
The Advertising Standards Board has also been cracking down on influencers not declaring sponsored posts. Sophie Cachia was found to have breached the AANA Code of Ethics in June when she posted about a brand with which she has an ongoing sponsorship relationship without mentioning that in the post. Interestingly, the brand didn’t approve the post in question as part of their collaboration, yet it was still considered advertising due to their ongoing relationship. This is a common trend amongst influencers, and with so many working with health brands and supplements, they will need to be very aware of the AANA Code of Ethics and the TGA Social Media guide.
Under Australian Consumer Law, advertising cannot be misleading and, therefore, cannot make any misleading claims. In addition, a brand is required to have scientific evidence to support any claims they’re making.
The TGA requires approval to use “restricted representation” in advertising. These are claims relating to a serious form of a disease, condition, ailment or defect whereby serious is defined as “medically accepted to require diagnosis, treatment or supervision by a suitably qualified health professional, except where the form has been medically diagnosed and medically accepted as being suitable for self-treatment and management; or there is a diagnostic (including screening), preventative, monitoring, susceptibility or pre-disposition test available for the form (including a self-administered test), which requires medical interpretation or follow-up”. However, there is an exemption for pregnancy or where it is in the public interest. If a brand wishes to use a restricted representation, approval is required from the TGA.
So considering this, brands can make general claims such as ‘calcium for healthy bones and teeth’. These claims are either based on one of the more than 200 pre-approved food-health relationships in the Food Standards List or a food-health relationship established by the brand using an approved scientific method, with approval.
If you see an influencer posting something that looks #sponsored without #sponsored (or a similar indication), the first place to go is the ACCC. You can make a complaint to the ACCC about a breach of consumer law, or they will point you in the right direction.
If you see a brand making health claims that aren’t backed up by research or look a bit questionable, you can make a complaint to the TGA, who will investigate.
This article is intended for educational purposes only and not as legal advice.