Advertising your services

Advertising of healthcare services and therapeutic goods is becoming more and more prevalent, especially with the growing use of social media.

Although it can be a helpful tool to attract new business, caution must be exercised to ensure that the advertising does not breach the Health Practitioner Regulation National Law (National Law), the Therapeutic Goods Advertising Code (TGA Code) or the Australian Consumer Law (ACL). It is important to have a clear understanding of what is and isn’t acceptable when choosing to advertise.
 

What is advertising and why is it regulated?

Advertising includes all forms of printed and electronic media that promotes a health service and includes any public communication using television, radio, billboards, pictorial representations, mobile communications and other displays, internet and social media. It generally does not include information given to patients during consultations. 

The aim of regulating advertising is to ensure that people can make informed decisions about their healthcare without being misled. Public safety is the overarching concern.

The National Law – Your responsibilities

Advertising of healthcare services is covered under the National Law.
Under section 133 of the National Law it is an offence for anyone to advertise a health service that is provided, or that is usually provided, by a health practitioner (or to advertise a business that provides such a service) in a way that:

  • Is false, misleading or deceptive or likely to be so;
  • Offers a gift, discount or other inducement to attract a patient to use the service or the business without stating the terms and conditions;
  • Uses testimonials or purported testimonials about the service or the business;
  • Creates an unreasonable expectation of beneficial treatment; or
  • Encourages the indiscriminate or unnecessary use of such health services.
If advertising does not comply with the National Law the consequences could include significant monetary fines or disciplinary action including limiting, suspending or cancelling a practitioner’s registration and their ability to practise.

In December 2020, the National Boards / Ahpra updated their advertising guidelines, providing further details about how to comply with National Law advertising requirements.  MIGA contributed to this process, successfully obtaining a range of important clarifications around how the requirements operate, particularly around advertising expertise, levels of acceptable evidence and control of advertising.   

The National Boards / Ahpra also have an advertising hub, containing a range of information covering acceptable levels of evidence, examples of compliant and non-compliant advertising, FAQs and a self-assessment tool.
 
The role of National Boards / Ahpra
As many members and clients are aware, the National Boards and the Australian Health Practitioner Regulation Agency (Ahpra) monitor the advertising of healthcare services to ensure that practitioners, practices and others abide by the National Law.

In circumstances where Ahpra identifies that your advertising may not comply with the requirements under the National Law you will generally be sent a letter notifying you of the potential breach. It is common practice for Ahpra to allow the practitioner or practice a period of time to review the advertising and address any possible breaches of the legislation. In our experience harsh penalties or restrictions can be avoided in most cases by acknowledgement and taking prompt and appropriate action.
 
A recent experience
MIGA was recently able to assist a member who had received a notice from Ahpra regarding the advertising on their website. 

We reviewed the member’s website and identified potential breaches of the National Law. We assisted our member to remove some content altogether (including testimonials) and to reword content to ensure compliance. We also assisted the member by liaising with Ahpra to reach a satisfactory conclusion of the matter. 

The Medical Board was ultimately satisfied with the changes made to the website and did not take any further action. The member was grateful for our assistance and support.
 
The role of the TGA
The Therapeutic Goods Administration (TGA) is responsible for regulating ‘therapeutic goods’ – these are products designed for use in people involving diagnosis or management of a disease, injury or physiological process.

The Therapeutic Goods Advertising Code (No.2) 2018 covers requirements for advertising therapeutic goods and restricted and prohibited representations. There are different requirements depending on the type of therapeutic goods being advertised.

The TGA handles complaints about the advertising of therapeutic goods to the public. If a complaint is made, it will be assessed by the TGA and, if considered appropriate, the advertiser will be contacted and informed of the breach. Generally they will be given the opportunity to correct the breach. If the advertiser takes no action or insufficient action, the TGA may choose to take the matter further. Further action may include referring the matter for criminal or civil action, issuing an infringement notice or going to court to try and stop the advertising.
 
The role of the ACCC
The Australian Competition & Consumer Commission (ACCC) can handle complaints relating to Australian Consumer Law (ACL) breaches.  These can involve situations of misleading advertising relating to qualifications, expertise, costs or possible outcomes.   

The ACCC has powers to seek agreements from advertisers, issue infringement notices and institute court action, seek penalties, damages, restrictions and advertising corrections.  In August 2020, the ACCC obtained $2.9 million in penalties relating to misleading conduct, involving third party healthcare reviews and ratings (use of reviews, ratings and other testimonials are not permitted in advertising by health practitioners).
 
What you can do to ensure compliance?
It is important to get your advertising right. It is your responsibility to ensure your advertising complies with the law, even if the advertising is produced by a third party with your knowledge.

Whilst TGA or ACCC actions involving doctors and other healthcare providers are less common than National Board / Ahpra matters, it remains important to ensure TGA code and ACL compliance.
 
When advertising your services, you need to be familiar with National Law, TGA and ACL requirements. Further guidance is available below.

Our Legal Services team is familiar with issues surrounding the advertising of healthcare services and therapeutic goods.  If you are uncertain about your obligations, or have received a notice from Ahpra, the TGA, or the ACCC, contact MIGA’s lawyers.

Other resources:
  1. National Boards / Ahpra – Guidelines for advertising regulated health services
  2. Ahpra – Social media guide
  3. TGA – Advertising therapeutic goods
  4. ACCC – Advertising & selling.

Carmelina Parisi 
Solicitor - Legal Services

Updated January 2021

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