Activewear retailer Lorna Jane has recently received infringement notices from the Therapeutic Goods Administration (TGA) totalling $39,960 for alleged unlawful advertising in relation to COVID-19. Lorna Jane allegedly claimed that its 'anti-virus activewear' prevents and protects against infectious diseases, implying it was effective against COVID-19.

The TGA took the view (as outlined in its press release) that:

  • Lorna Jane represented that its 'anti-virus activewear' had a therapeutic use, making it a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (the Act). Such goods and the associated advertising of those goods are subject to regulations administrated by the TGA;
  • The advertisement referred to therapeutic goods that were not included in the Australian Register of Therapeutic Goods, which is a requirement before they can be lawfully supplied or advertised in Australia;
  • Under the Act, any references to COVID-19 (and related terms) are restricted representations and require a formal approval or permission from the TGA before they can be made; and,
  • It is also a breach of the Therapeutic Goods Advertising Code (No. 2) 2018 to promote a therapeutic good as being safe, harmless or without side effects.

The TGA has issued warnings to advertisers and consumers in relation to the COVID-19 pandemic, including reminding advertisers that it will take action in relation to illegal advertising of therapeutic products and that:

  • Criminal offence and civil penalty provisions apply to illegal advertising of therapeutic goods; and,
  • the TGA is monitoring non-compliance, particularly in relation to the advertising of products that claim to prevent or cure COVID-19 and it will take the necessary action in relation to those requirements.

This is a timely reminder that advertisers need to be careful when advertising therapeutic goods especially against the backdrop of a global pandemic and must ensure compliance with the Act and regulations at all times. Care must be taken to ensure that your business does not make false or misleading claims.

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