Concerns have been expressed by pharmacists about in-pharmacy price promotions and in-pharmacy promotions generally and there is a view that regulations dealing with such promotions should be strengthened. In light of these recent concerns we will, in this article, revisit some general guidelines relating to-advertising and promotion of Medicines by Pharmacy.
The Therapeutic Goods Act and the Therapeutic Goods Regulations regulate therapeutic goods, being medical devices and medicinal products, which also include complimentary medicines and sunscreens for example. The Therapeutic Goods Act includes a definition of “advertisement” which is applicable to most pharmacy promotions. Advertising is defined as any statement, pictorial representation or design, however made that is intended, whether directly or indirectly, to promote the use or supply of the goods and advertising of the goods. Any such advertisements are regulated by the Therapeutic Goods Advertising Code.
Under the Code, any advertisements conducted by a pharmacy must not:
- arouse unrealistic and unwarranted expectations of the effectiveness of the product;
- claim the product will lead to a guaranteed or certain cure;
- imply it is effective in all cases;
- claim goods are safe or have no side-effects;
- lead people to believe that they may have a serious ailment, or that harmful consequences may result from not using the product;
- mislead directly or by implication or through emphasis, comparisons, or omissions;
- lead to self-diagnosing or inappropriate treatment;
- contain language that encourages fear or distress; or
- encourage inappropriate or excessive use.
Advertisements and other promotional materials must also comply with:
- Section 18 of the Australian Consumer Law (ACL) which prohibits misleading or deceptive conduct and conduct that is likely to mislead or deceive; and
- Section 29 of the ACL which prohibits false or misleading representations about goods or services such as that goods are of a particular standard or quality or that goods have sponsorship, approval, performance characteristics, uses or benefits or concerning the need for the goods.
Further restrictions apply to advertisements containing a price.
Advertisements which feature ONLY the price and the product do not require clearance prior to publication. Although it is possible for you to also include a picture of the product in your advertisement, it is important that you ensure that your advertisement does not contain any claim for therapeutic use in relation to it. Any advertisement containing such a claim will require clearance from the relevant authority.
Care must also be taken when issuing pricelists for prescription drugs and pharmacist-only drugs as most of these drugs are prohibited to be advertised to customers under the Therapeutic Goods Act.
However, strictly speaking, pricelists that are issued in accordance with the Price Information Code of Practice, which sets out the conditions for publication of such price lists, are not advertisements as such and may be published.
There is however a very fine line between what constitutes a pricelist and what constitutes an unacceptable advertisement in this regard.
- A price list which only includes product names, quantities and prices, but does not indicate or promote the use or supply of the particular product, is not an advertisement.
- However, a brochure which includes a pictorial representation and a price, as set out above, is an advertisement.
Further, terms such as “save if you purchase the 100 tablet pack” and “this offer is available only for a limited time” as well as any type of price comparison should be avoided when publishing pricelists for prescription drugs as they will also constitute an advertisement.
Other relevant factors include the text type and colour used as well as any graphics contained in the pricelist. Some may be acceptable and some may not.
Similarly, advertisements and pricelists should not be intermixed. A brochure which contains both, promotional material (such as cosmetic advertisements) and a pricelist for prescription drugs or pharmacist–only medicines amounts to an unacceptable presentation.
When conducting a promotion for your customers or issuing a pricelist, you should bear in mind that therapeutic goods are not ordinary items of commerce. Although the laws surrounding pharmaceutical advertising are often confusing, it is your duty and responsibility to comply with them.
For this reason, you should seek legal advice from a specialist lawyer before conducting a promotion or issuing a pricelist to ensure compliance with all relevant laws.
In our next article, “Not playing by the rules?”, we will look at what the Therapeutic Goods Administration has done to enforce the advertising regulations and what outcomes have been achieved.