The five legal obligations you need to know


A rundown for pharmacists on updated guidelines from Ahpra & the National Boards for advertising a regulated health service

December 2020 saw the release of updated Guidelines from Ahpra and the National Boards for advertising a regulated health service. 

The guidelines explain:

  • who is an advertiser
  • what is considered advertising
  • types of advertising likely to breach the advertiser’s legal obligations.

Who do the guidelines apply to?

The Guidelines apply to any person or business who advertises a regulated health service. This includes pharmacists who advertise their professional services.    

What does advertising include?

Advertising means all forms of verbal, printed and electronic communication that promotes a regulated health service provider and/or seeks to attract a person to use the regulated health service and includes:

  • television
  • radio
  • newspapers
  • brochures, flyers, magazines
  • shop signage and billboards
  • photographs
  • internet including websites and social media
  • public and professional directory listings

What legal obligations apply?

In short, if you are advertising a regulated health service, your advertising must not:

  1. be false, misleading or deceptive, or likely to be misleading or deceptive
  2. offer a gift, discount or other inducement, unless the terms and conditions of the offer are also stated 
  3. use testimonials or purported testimonials about the service or business 
  4. create an unreasonable expectation of beneficial treatment
  5. directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services.

False, misleading or deceptive advertising

Advertising may be false, misleading or deceptive when it:

  • misleads, either directly or by implication through the use of emphasis, comparison, contrast or omission
  • provides partial information and/or omits important details
  • uses scientific information that is inaccurate, unbalanced, not easily understood by the public
  • makes statements about the effectiveness of the treatment that are not supported by acceptable evidence
  • makes unqualified claims about the effectiveness of treatment by listing health conditions that a treatment or service can ‘assist with’ or ‘treat’
  • suggests a practitioner is a registered health practitioner or holds specialist registration, qualifications or an endorsement when they do not
  • minimises, underplays or under-represents the risk or potential risk associated with a treatment or procedure
  • compares health outcomes, regulated health professions or practitioners or prices without complete information
  • makes claims about providing a superior regulated health service.

Registered health practitioners must be careful about how they use ‘Doctor’ or ‘Dr’ in their advertising. If the title ‘Dr’ is used in advertising and does not refer to a registered medical practitioner, then (whether or not a doctorate or PhD is held) the profession the practitioner is registered in should be made clear.

For example, Dr Brown (Pharmacist). 

Gifts, discounts or inducements

Advertising that offers a gift, discount or other inducement to attract someone to use the regulated health service or business must state the terms and conditions of the offer, gift or inducement.

The terms and conditions should be provided in full in plain language.

Pricing information should be clear and precise.  The word “free” must not be used in a misleading way.

Any exclusions, restrictions or limitation, such as age, expiry date, geographical or restrictions on who is eligible for an offer must be explained.

Testimonials 

Testimonials, including patient stories and experiences, must not be used for advertising gain.

However, not all reviews or positive comments made about a regulated health service are considered testimonials.  For example, comments about customer service that do not include a reference to clinical aspects are not considered testimonials for the purposes of the National Law and may be used.

Advertising that creates an unreasonable expectation of beneficial treatment

Advertising must not create an unreasonable expectation of beneficial treatment.

This can occur if the advertising:

  • creates an unreasonable expectation of outcomes or recovery time after providing a regulated health service
  • overstates the potential benefit of a treatment
  • minimises the complexity of risk associated with a treatment (ie. using words or phrases such as ‘safe’, ‘effective’, ‘risk-free’, ‘pain-free’) without acknowledging possible adverse reactions or mixed/inconclusive evidence for the treatment
  • contains false or unsubstantiated information or material that is likely to make a person believe their health or wellbeing may suffer from not using the regulated health service
  • contains a claim, statement or implication that is likely to create an unreasonable expectation of beneficial treatment by: – either expressly, or by omission, indicating that the treatment is infallible, unfailing, magical, miraculous or a certainty, guaranteed or sure cure – stating that the practitioner has an exclusive or unique skill or remedy that will benefit the patient and/or – uses photos or images of unrealistic outcomes.

Encouraging indiscriminate or unnecessary use of regulated health services

Advertising may be unlawful if it:

  • creates a sense of urgency that is linked to a person’s health suffering if they do not use a regulated health service, where there is no clinical indication to support this. Care must be taken when using words or phrases such as ‘don’t delay’, ‘act now before it’s too late’, ‘don’t miss out’, ‘time is running out’, or ‘for a limited time only’
  • uses incentives such as prizes, discounts, bonuses, gifts that would encourage people to use services regardless of clinical need or therapeutic benefit.

Penalties

The National Law includes financial penalties for advertising offences, up to:

  • $5,000 per offence, for an individual; and
  • $10,000 per offence, for a body corporate.

Other Laws

In addition to the National Law, health practitioners must also ensure that any advertising complies with Australian Consumer Law, Therapeutic Goods Act and Regulations, Therapeutic Goods Advertising Code, the Poisons Standard and State and Territory based drugs and poisons legislation.

In our experience these can be tricky to navigate.

If you require any specific information or assistance to protect your interests, please do not hesitate to contact Julia on 0412 883 021 or julia@twenty20legal.com.au.

Julia Smith is a Principal Lawyer at twenty20legal with over 20+ years in commercial law acting for health professionals and groups across Australia.  Julia’s significant pharmacy experience includes advising pharmacy owners on tax risk and compliance matters, business structures and commercial transactions, ATO investigations and audits, and much more.

Disclaimer: The content of this article is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal advice. You should seek legal or other professional advice before acting or relying on any content of this article.

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