Influencers in Australia promoting skincare, vitamins and sunscreens now bound by same regulations as all other advertising formats
Over the weekend a flurry of stories ran across Australian mainstream media incorrectly suggesting the end of influencer marketing for cosmetic firms.
The thrust of the stories prematurely foreshadowed the demise of influencer marketing for skincare, sunscreens, protein powders, vitamins, supplements, skincare for acne, medicines and skin lightening products.
The reality is that as influencer marketing professionalises so regulators are keen to ensure the discipline sticks to the same rules as all other marketing channels.
Australia's regulator of medicines and medical devices - The Therapeutic Goods Administration (TGA) - published new social media advertising guidance in January. For the first time, social media influencers are explicitly mentioned. This brings the rules for influencers in line with all advertising for therapeutic goods.
What’s changed for influencers promoting therapeutics?
The key consideration centres on whether the influencer’s sponsored content is an endorsement or a testimonial. Endorsements are permitted within TGA’s code. Testimonials have never been accepted by TGA. “Any comments you make about your personal experience with therapeutic goods amounts to a testimonial,” explains TGA’s guide continuing: “Testimonials are not permitted by those involved in the production, sale, supply or marketing of the goods. This includes influencers who are engaged by a therapeutic goods company to promote the goods”.
Suzy Madar, partner at King & Wood Mallesons law firm has written a helpful legal explainer pointing out that the new code seeks to tighten potentially grey areas contained within the previous iteration of the code (2018).
The TGA's purpose is to prohibit advertisements that cause, or are likely to cause, undue alarm, fear or distress by prohibiting paid or incentivised testimonials. Endorsements are still fair game as long as they do not describe misleading benefits of the good or personal experience.
An influencer can still be endorsed to promote a product, but when they do, they can't take liberties in explaining its speculative benefits and provided the endorsement does not refer to the person’s personal experience using the good, which would make it a testimonial, they're good to go.
Influencers should be careful to ensure their audiences choose therapeutic goods on the basis of clinical need, not through their persuasion. TGA warns influencers that their social media posts may have an impact on their audience’s beliefs, attitudes, preferences and behaviours. An influencer’s comments about therapeutic goods can influence consumers' choices warns TGA.
Influencers should also understand what the approved purpose of the good is and be careful not advertise the good for a purpose other than that, even if an influencer’s experience with the good is otherwise.
Beauty brands spend around $8 million on influencer marketing partnerships in Australia each year, according to HypeAuditor’s Beauty Industry Report.
Advertisers have until 30 June 2022 to transition from the current Code to the 2021 Code. During this 6-month transition period advertisers may apply either the current Code or the 2021 Code. All testimonials in breach of the Code should be taken down by July 1, 2022.