Australia: What are the rules in advertising health services and therapeutic goods, including testimonials?

Australian Health Practitioner Regulation Agency v Limboro (15 February 2017)

Advertising health services and therapeutic goods is regulated by a number of laws and codes including:

  • The Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law;
  • The Therapeutic Goods Act 1989 (Cth) and the Therapeutic Goods Advertising Code 2015 (Cth) in relation to advertising to consumers;
  • If the company is a member of Medicines Australia, the Medicines Australia Code of Conduct;
  • If the company is a member of the Medical Technology Association of Australia, the Medical Technology Code of Practice;
  • The Health Practitioner Regulation National Law (NSW) (or equivalent) (National Law);
  • Medical Board Good Medical Practice – A Code of Conduct for Doctors in Australia; and
  • Guidelines for Advertising Regulated Health Services.

Australian Consumer Law

Section 18 of the Australian Consumer Law prohibits a person from, in trade or commerce, in engaging in conduct that is misleading or deceptive or is likely to mislead or deceive.

The maximum penalty for false or misleading and unconscionable conduct, pyramid selling and breaches of relevant product safety provisions is:

  • $1.1 million for corporations
  • $220 000 for individuals.

The National Law

Section 133 of the National Law provides a person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that:

  • is false, misleading or deceptive or is likely to be misleading or deceptive;
  • offers a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer;
  • uses testimonials or purported testimonials about the service or business;
  • creates an unreasonable expectation of beneficial treatment; or
  • directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

Maximum penalty—

  1. in the case of an individual—$5,000; or
  2. in the case of a body corporate—$10,000.
  3. A person does not commit an offence against subsection (1) merely because the person, as part of the person's business, prints or publishes an advertisement for another person.

    In proceedings for an offence against this section, a court may have regard to a guideline approved by a National Board about the advertising of regulated health services.

  1. In this section— regulated health service means a service provided by, or usually provided by, a health practitioner.

This obligation does not only cover health practitioners but anyone (including corporations) who "advertises" a "regulated health service".

Who is a health practitioner?

A "health practitioner" means an individual who practises a health profession.

What is a health profession?

A "health profession" means the following professions, and includes a recognised specialty in any of the following professions—

  1. Aboriginal and Torres Strait Islander health practice;
  2. Chinese medicine;
  3. chiropractic;
  4. dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);
  5. medical;
  6. medical radiation practice;
  7. nursing and midwifery;
  8. occupational therapy;
  9. optometry;
  10. osteopathy;
  11. pharmacy;
  12. physiotherapy;
  13. podiatry;
  14. psychology.

Note. See Division 15 of Part 12 which provides for a staged commencement of the application of this Law to the Aboriginal and Torres Strait Islander health practice, Chinese medicine, medical radiation practice and occupational therapy professions.

Whilst the Guidelines for Advertising Regulated Health Services are not a legislative instrument, a court may have regard to the Guidelines in proceedings for an offence against section 133 of the National Law.43

For current and previously registered health practitioners,44 a breach of section 133 of the National Law may also lead to disciplinary action under the National Law.

The Medical Board Good Medical Practice – A Code of Conduct for Doctors in Australia states:

"Good medical practice involves:
8.6.1 Making sure that any information you publish about your medical services is factual and verifiable.
8.6.2 Making only justifiable claims about the quality or outcomes of your services in any information you provide to patients.
8.6.3 Not guaranteeing cures, exploiting patients' vulnerability or fears about their future health, or raising unrealistic expectations.
8.6.4 Not offering inducements or using testimonials.
8.6.5 Not making unfair or inaccurate comparisons between your services and those of colleagues."

The Guidelines for Advertising Regulated Health Services states:

6.2.3 Testimonials

The National Law does not define 'testimonial', so the word has its ordinary meaning of a positive statement about a person or thing.

In the context of the National Law, a testimonial includes recommendations, or statements about the clinical aspects of a regulated health service. The National Law ban on using testimonials means it is not acceptable to use testimonials in your own advertising, such as on your Facebook page, in a print, radio or television advertisement, or on your website.

This means that:

  1. you cannot use or quote testimonials on a site or in social media that is advertising a regulated health service, including patients posting comments about a practitioner on the practitioner's business website, and
  2. you cannot use testimonials in advertising a regulated health service to promote a practitioner or service.

Health practitioners should therefore not encourage patients to leave testimonials on websites health practitioners control, such as Facebook or Linkedin in that advertise their own regulated health services, and should remove any testimonials that are posted there.

Testimonials in relation to Therapeutic Goods

In addition, Good Medical Practice: A Code of Conduct for Doctors in Australia states:

"Doctors must be honest and transparent in financial arrangements with patients. Good medical practice involves:

8.12.5 Being transparent in financial and commercial matters relating to your work, including in your dealings with employers, insurers and other organisations or individuals. In particular:

  • declaring any relevant and material financial or commercial interest that you or your family might have in any aspect of the patient's care
  • declaring to your patients your professional and financial interest in any product you might endorse or sell from your practice, and
  • not making an unjustifiable profit from the sale or endorsement".

The Therapeutic Goods Administration (TGA) is responsible for regulating therapeutic goods including medicines, medical devices, biologicals, blood and blood products.

If the advertising only comprises pricing for prescription-only (Schedule 4 and 8) and certain pharmacist-only (Schedule 3 of the Poisons Standard) medicines, then the advertisement must comply with the Therapeutic Goods Act 1989, Therapeutic Goods Regulations 1990, the Therapeutic Goods Advertising Code 2015 and the Price Information Code of Practice.

A list of practitioners permitted to advertise price information for certain Schedule 3, Schedule 4 and Schedule 8 medicines is included in the Price information code of practice, available via the TGA website: www.tga.gov.au.

If the advertising promotes one or more therapeutic goods (under the Therapeutic Goods Act 1989, then the advertising must comply with the Therapeutic Goods Act 1989, Therapeutic Goods Regulations 1990, the Therapeutic Goods Advertising Code 2015 and, where relevant, the Price Information Code of Practice. Advertisers should note the definition of 'advertisement' in the Therapeutic Goods Act 1989.

See Appendix 4 of the Guidelines for Advertising Regulated Health Services for more information about advertising therapeutic goods.

The Therapeutic Goods Advertising Code, section 4(7) states that testimonials must be documented, genuine, not misleading and illustrate typical cases only.

We also recommend to require any person providing a testimonial to sign an appropriately worded privacy consent form, including a warranty and representation as to the truth of their testimonial.

Prosecution under the Health Practitioner National Law – Hance Limboro

On 15 February 2017, in a landmark ruling, a Sydney chiropractor, Dr Hance Limboro, was convicted of falsely advertising a regulated health service and using testimonials in his advertising in contravention of the Health Practitioner Regulation National Law after he pleaded guilty to 13 charges fled by the Australian Health Practitioner Regulation Agency (AHPRA) in August 2016.

Dr Limboro was convicted for making false advertising and using testimonials on the website for his clinic. The advertisements included claims that chiropractic adjustments could prevent, treat and cure cancer and that chiropractic adjustments are safe and risk free. Mr Limboro was fined $29,500 by the Court and was ordered to pay AHPRA's legal costs.

Footnotes

43 Section 133(3) of National Law.

44 Section 139G of the National Law provides disciplinary actions may be taken in relation to a person's behaviour while registered as a health practitioner as if the person were still registered under the National Law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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