Introduction
As advertising of medical services is becoming increasingly sophisticated and essential for business growth, understanding the intricate web of laws and regulations governing this area is more vital than ever. From the oversight of general medical advertising to the detailed scrutiny of cosmetic surgery promotions, the requirements and restrictions in Australia are both rigorous and multi-faceted.
Health Practitioner Regulation National Law
Under the administration of the Australian Health Practitioner Regulation Agency (AHPRA), the National Law plays a crucial role in regulating the advertising of health services in Australia.
Section 133 regulates the advertising of a regulated health service or a business providing such a service in several specific ways:
- False or Misleading Advertising: This encompasses any advertisement that is false, misleading, deceptive, or likely to be seen as such. Care must be taken to ensure that claims are substantiated, and representations are accurate.
- Offers and Inducements: Offering gifts, discounts, or inducements is permitted, but the advertisement must also clearly state the terms and conditions of the offer. Any hidden or ambiguous terms can lead to violations of this section.
- Testimonials: Use of testimonials or purported testimonials about the service or business is prohibited. This ensures the integrity and objectivity of advertising content.
- Unreasonable Expectations: Advertisements must not create unreasonable expectations of beneficial treatment. Overpromising results or benefits can be seen as a violation of this provision.
- Indiscriminate or Unnecessary Encouragement: Advertising must not directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services. This ensures that health services are sought responsibly and appropriately by consumers.
The penalties for a breach of the advertising provisions can be severe, with individuals facing a civil penalty of $5,000, while the penalty for a body corporate is $10,000. If the breach relates to the unlawful use of a protected title, penalties may be as high as $60,000 for individuals and $120,000 for body corporates.
Advertising of health services must also align with the Australian Consumer Law (ACL). Advertising which is misleading or deceptive or likely to mislead or deceive consumers under the National Law will also likely contravene sections 18 and 29 of the ACL, with consequences including compensation for aggrieved consumers and penalties.
Guidelines for Advertising Regulated Health Services
Established under the National Law, the Guidelines for advertising a regulated health service provide detailed insight into the obligations for advertising a regulated health service under the National Law. Section 133(3) provides that these guidelines may be used by courts when prosecuting offences and help define what is considered appropriate advertising behaviour.
Guidelines for Registered Medical Practitioners who Advertise Cosmetic Surgery
These guidelines are aimed to enhance patient safety in the cosmetic surgery sector by regulating advertising used on social media platforms, which is said to have led to increased incidences of body dysmorphia and other body image concerns.
The guidelines now establish what the Medical Board considers to be ‘good practice’ in advertising cosmetic surgery. Good practice in this context means advertising which:
- Gives balanced and accurate information: This ensures that the overall impression created by the advertising is not misleading, providing prospective patients with a fair understanding of the procedure.
- Describes and/or shows realistic results: Any representations of outcomes should be truthful and reflect what can realistically be achieved through the procedure.
- Presents the risks and recovery process accurately: Transparency about potential complications and the recovery process is essential to ensure that patients are well-informed.
- Makes clear that outcomes depend on individual characteristics: Cosmetic surgery results can vary widely, and advertising must make it clear that outcomes will depend on the individual’s unique characteristics.
- Presents normal body variations positively without pathologising normal appearance or encouraging surgery to ‘fix’ normal variations: This principle emphasises the acceptance of natural body diversity and discourages presenting normal variations as flaws that require surgical intervention.
These guidelines provide specific guidance for medical practitioners who advertise cosmetic surgery and apply to both surgical procedures and non-surgical cosmetic procedures.
Therapeutic Goods Act, Regulations and Advertising Code
In circumstances where the supply of regulated health services involves the use of therapeutic goods, it is also necessary to ensure compliance with the Therapeutic Goods Advertising Code. Therapeutic Goods include items such as medicines, cosmetic injectables, and chemical peels, all of which fall under specific regulatory guidelines.
The Therapeutic Goods Administration (TGA) is responsible for enforcement in these areas, monitoring compliance with the laws governing the importation, supply, and advertising of therapeutic goods in Australia. The current import, advertising and supply compliance priorities published by the TGA are especially pertinent to businesses engaged in selling medicinal cannabis, nicotine vaping products, and medical devices advertised as traditional or alternative treatments.
Non-compliance with the advertising requirements related to therapeutic goods can result in legal action, including warning notices, infringement notices, and court proceedings being taken by the TGA and substantial penalties may be imposed.
Courts have consistently underscored the responsibility of anyone engaged in a business involving the supply, use, and advertising of therapeutic goods to be aware of the regulatory regime and to comply fully with the relevant regulatory requirements.
Comment
The regulatory framework around advertising of health services seeks to preserve the integrity and transparency of the health services offered and promote patient safety. It is important that health practitioners have knowledge of what they can and cannot include in any proposed advertising of their services to avoid possible prosecution for an inadvertent breach of the advertising requirements.
If you are a health professional or health service provider seeking to navigate the complex landscape of advertising regulations, please contact Gemma McGrath or Enore Panetta for assistance.
