The proposed Therapeutics Act 2023 did not survive the new government's assumption of power with the Medicines Act 1981 (the Act) continuing to be the overarching legislation that governs the advertising of "therapeutic products" for the foreseeable future.
Alongside the general consumer law around not engaging in misleading or deceptive conduct, the Act applies to the advertising of all products, which includes:
- preventing, diagnosing, monitoring, alleviating, treating, curing, or compensating for, a disease, ailment, defect or injury;
- influencing, inhibiting, or modifying a physiological process;
- testing the susceptibility of persons to a disease or ailment;
- influencing, controlling or preventing conception;
- testing for pregnancy; or
- investigating, replacing or modifying parts of the human anatomy.
The definition above is broad by design, ensuring that it is not confined to specialist products and captures a wide variety of products. This includes products that are available in your local pharmacy or supermarket, such as supplements, topical treatments, skincare and natural remedies. Accordingly, retailers must be conscious if any of the products they offer fall within the above definition.
The Act also provides wide powers to the Governor General, on the advice of the Ministry of Health, to regulate the advertisement of any therapeutic products. This includes broad powers to restrict advertisements, such as requiring advertisers to disclose certain side effects during an advertisement.
In addition to the Act, the Advertising Standards Authority has a specific code around the advertising of therapeutic products. These reference the regulations under the Act and can be found here. The regulations are based on two principles, the first of social responsibility as consumers rely on therapeutic products for their health and wellbeing and the second of truthful presentation as advertisers shall not mislead, deceive or confuse consumers.
Although reform looks to be off the table for the foreseeable future, it remains paramount that businesses stay alert and take care when advertising therapeutic products. It is imperative that businesses are aware of, and take steps to comply with, the regulatory framework surrounding the advertising of medical products.
The Consumer Markets Team at Wynn Williams are specialists in consumer law. We are experts at advising retailers and marketing teams around Aotearoa New Zealand, helping them to walk the regulatory tight rope when making decisions about the advertisement of therapeutic products.
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.
