15 Nov 2018

A "pragmatic" approach in the changeover to the Advertising Code 2018

By Dean Gerakiteys

The TGA will be pragmatic when an advertisement would have been compliant with the 2015 Code but is not compliant with the 2018 Code.

In addition to detailing the way in which it intends to categorise and progress advertising complaints according to their risk to the public, the TGA has also provided greater clarity on the approach it will take to advertising that remains in place from 1 January 2019 that complies with the Therapeutic Goods Advertising Code 2015, but not the Therapeutic Goods Advertising Code 2018. 

Consistent with the recently detailed risk based model, the TGA has confirmed that it intends to take a "pragmatic approach" as part of the transition from the 2015 Code to the 2018 Code that focuses on the risk posed to public health and safety. 

To this end, the TGA has indicated that where an advertisement would have been compliant with the 2015 Code but is not compliant with the 2018 Code, in particular as regards mandatory statements, scientific citations and testimonial disclosures, such non-compliance will not likely be considered to pose a risk to public health and safety. Accordingly, complaints of this kind that are received during the first half of 2019, will likely only result in a letter being sent to the advertiser of the obligations that apply to advertisements under the 2018 Code. 

Where however, the complaint also includes other alleged non-compliance that might result in the advertising posing a risk to public health and safety, more serious action may still be taken  during this time. 

This will be welcome news to sponsors given the increased penalties and enforcement actions available to the TGA for non-compliant advertising.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.