SNAPSHOT

Advertising prescription medicines, including vaccines, to consumers is generally prohibited in Australia due to concerns that consumers’ expectations and doctors’ behavior may be influenced inappropriately.

In light of the COVID-19 pandemic and to assist with the highly anticipated roll out of COVID-19 vaccines in Australia, the Therapeutic Goods Administration (the TGA) has permitted any party to create advertisements promoting the use and supply of registered COVID-19 vaccines, provided certain conditions are met (the 2021 permission).1

This article gives a current snapshot on the law regarding lawful communications when advertising COVID-19 vaccines. Our article on the law in relation to offers for rewards when promoting and advertising COVID-19 vaccines can be viewed here.

ADVERTISING THE USE AND SUPPLY OF COVID-19 VACCINES

Under the 2021 permission, until 31 December 2022, any party (including health professionals, corporate entities and media outlets), can create their own content to promote COVID-19 vaccines provided that:

  • the content is consistent with current Commonwealth health messaging regarding the National COVID-19 Vaccination Program; and
  • the content does not contain:
    • any reference to the trade name, sponsor name or active ingredient or any other information that would identify the vaccine (e.g. ‘Pfizer’ or ‘AstraZeneca’) unless the advertisement is made by an approved COVID-19 vaccination provider;
    • any statement, or implication comparing different COVID-19 vaccines (or comparing vaccines with treatments such as medicines);
    • statements to the effect that COVID-19 vaccines cannot cause harm or have no side effects; or
    • any statement regarding COVID-19 vaccines that is false or misleading.

What are some examples of content that is likely to be advertising?

Examples of advertising include:

  • re-posting articles and social media posts promoting the National COVID-19 Vaccination Program; and
  • promoting social media posts and electronic messaging that encourages individuals to get vaccinated at a specific clinic or promotes a clinic’s/health services’ offer (e.g. a medical clinic offering a free health check-up if you book your COVID-19 vaccine with them).

The TGA has published guidance to assist individuals, healthcare providers and businesses to understand and navigate the requirements and create their own content to promote COVID-19 vaccines.2

What about factual information?

If published information is factual and balanced (i.e. not promotional) it will not be subject to the conditions applicable for advertising COVID-19 vaccines.

Factual and balanced information can include technical information relating to how the vaccines were developed and manufactured. It may also include sharing scientific reports (e.g. from the World Health Organization) about the vaccine, which does not include promotional material or language.

What is ‘Commonwealth health messaging’?

Commonwealth health messaging refers to any material that is published on Australian Government websites (including social media). This material will be regularly updated to keep it current with any changes to Government policy about the vaccine program.

Specific Commonwealth messaging about the COVID-19 vaccines is developed to facilitate optimal uptake and to ensure the public receives accurate information about safety and efficacy of the vaccines. Accordingly, any references to the safety and efficacy of COVID-19 vaccines must align with Commonwealth health messaging.

Who is an ‘approved COVID-19 vaccination provider’?

A recognised vaccination provider within the meaning of the Australian Immunisation Register Act 2015 (Cth), is a provider that has been:

  • approved or authorised under relevant state or territory legislation to administer COVID-19 vaccines; and
  • approved by the Department of Health to participate in the National COVID-19 Vaccination Program.

Examples of recognised vaccine providers include general practitioners, hospitals, GP clinics and pharmacies.

Am I able to promote unregistered vaccines or medicines for the treatment of COVID-19?

No. It is unlawful to promote unregistered vaccine products or any other registered or unregistered medicines for the prevention or treatment of COVID-19.

If the content I create is compliant with Government messaging and promotional material at the date of development, do I have to regularly check that the messaging is still current?

Yes. It is the responsibility of the party preparing the communications to ensure the advertisement is based on current Government messaging. We suggest regularly checking any updated promotional materials produced by the Australian Government or an Australian state or territory government to ensure it still aligns with the messaging in your developed content.

Can I still use Government materials when creating my own content?

Yes. Under the new guidelines any party can use materials produced by the Australian Government or an Australian state or territory government to promote COVID-19 vaccines.

Advertising content is recommended to include reference to the Vaccine Eligibility Checker, to assist staff, patients, customers, or stakeholders in finding out if they are eligible to receive a COVID-19 vaccine and if so, which vaccine they are eligible for and where to get the vaccine.

Can I create my own content to advertise vaccines under the 2019 TGA permission?

No. In 2019, permission was granted for any party to use material produced by the Australian Government or an Australian state or territory government to advertise vaccines (including COVID-19 vaccines and other vaccines) that are from a Government health campaign (the 2019 permission).3

The 2021 permission allowing a party to create their own materials to communicate publicly about the COVID-19 vaccines does not apply to advertisements for other vaccines made in accordance with the 2019 permission.

FOOTNOTES

1 Therapeutic Goods (Restricted Representations—COVID19 Vaccines) Permission (No. 3) 2021.

2 Department of Health: Therapeutic Goods Administration, ‘Communicating about COVID-19 vaccines’, Therapeutic Goods Administration (Web Page, 9 July 2021) <https://www.tga.gov.au/communicating-about-covid-19-vaccines>.

3 Therapeutic Goods (Restricted Representations— Government Health Campaigns) Permission 2019.

Joanna Green

Joanna Green

Principal

Anna Peddey

Anna Peddey

Senior Associate

Meenal Chand

Meenal Chand

Lawyer