SNAPSHOT

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 offers for rewards when promoting the use and supply of registered COVID-19 vaccines, provided certain conditions are met (the 2021 permission).1

In our article COVID-19 Vaccines: Lawful Communications, we provided a summary of the law in Australia regarding the advertising of prescription medicines, including vaccines, to consumers. This article gives a current snapshot on the law regarding offers for rewards in relation to COVID-19 vaccines.

OFFERING REWARDS FOR BEING FULLY VACCINATED

The TGA has granted permission, until 31 December 2022, for any party to offer valuable consideration (i.e. cash or other rewards of value) to fully vaccinated individuals under the Government’s National COVID-19 Vaccination Program, subject to the following conditions:

  • offers can only be made to eligible people who have been fully vaccinated (i.e. both doses of an approved COVID-19 vaccine);
  • any offer must contain a statement to the effect that the vaccination must be undertaken on the advice of a health practitioner. That is, the health practitioner engaging in consultation with the prospective recipient and providing their medical advice on the prospective recipient’s suitability to receive a vaccination, considering the individual’s health circumstances;
  • any rewards must not include tobacco or medicines that are not listed on the Australian Therapeutic Goods Register;
  • any offer must only refer to COVID-19 vaccines generically (i.e. not by trade name or another reference to a particular vaccine);
  • the offers must be made to all eligible people who have been vaccinated, meaning that offers must apply retrospectively. Offers should not be limited to those people vaccinated from the date of the offer;
  • offers may be made to a certain group (e.g. the employees of the business, or the members of the organisation) or the offer can be made to all members of the public; and
  • an offer of alcohol must not encourage excessive or rapid consumption of alcohol, have a strong or evident appeal to minors and must be served in compliance with the Responsible Service of Alcohol arrangements.

What are some examples of lawful rewards?

Examples of businesses offering rewards may include offering a free or subsidised service or good, such as:

  • a hotel group offering a free item (e.g. complimentary 15-minute foot massage at the hotel spa or complimentary breakfast in bed). The Hotel Group may also consider offering a company discount of 10% to be redeemable at any of its hotels; or
  • an employer providing employees who are fully vaccinated under the National COVID-19 Vaccination Program a voucher to use at their local café.

The TGA has also provided compliant examples of rewards offered by employers and medical clinics:

  • A medical centre and pharmacy publishing a Facebook post offering a free health check to anyone who has been fully vaccinated under the National COVID-19 Vaccination Program. The offer includes a statement that it is only valid for vaccinations undertaken on the advice of a health practitioner; and
  • A company sends an email to their staff, using their own branding, indicating they encourage all eligible staff to receive the COVID-19 vaccine as recommended by the Government and on the advice of a health practitioner. In the email they offer additional paid leave and an Uber ride to attend a vaccination appointment.

Does that mean an offer should also apply to those who have commenced or completed their vaccination schedule ahead of an offer being announced?

Yes. Even though businesses and individuals can limit the offer of the reward to particular persons (e.g. members of an organisation or their staff) the offer of the reward must not be conditional on the particular person becoming fully vaccinated after the announcement of the offer.

Is there a prescribed method to determine whether a person is ‘fully’ vaccinated?

Currently the TGA does not prescribe the means by which full vaccination is to be verified, although a person will be fully vaccinated once the person has received their final dose of one of the two currently approved vaccines (i.e. Pfizer and Astra Zeneca).

Can I make an offer for a reward conditional upon vaccinations being undertaken only on the advice of a health practitioner?

It is a requirement that any offer for a reward contains a statement to the effect that the vaccine must be undertaken on the advice of a health practitioner.

If I’m a health professional can I offer a reward?

Yes. However, health practitioners are still required to ensure compliance with the Health Practitioner Regulation National Law (the National Law), in particular section 133(1) of the National Law and APHRA’s Guidelines for advertising a regulated health service. The requirements imposed on a health practitioner under s 133(1) of the National Law includes ensuring any advertising of a regulated health service:

  • is not false, misleading or deceptive or is likely to be misleading or deceptive;
  • does not offer a gift, discount or other inducement to attract a person to use the service or the business, unless the advertisement also states the terms and conditions of the offer;
  • does not use testimonials or purported testimonials about the service or business;
  • does not create an unreasonable expectation of beneficial treatment; or
  • does not directly or indirectly encourage the indiscriminate or unnecessary use of regulated health services.

What if my offer of reward does not comply with the National Law?

It is the health practitioner’s responsibility to ensure compliance and to determine and communicate the applicable terms and conditions of any offer.

A failure to comply with section 133 of the National Law is a criminal offence. The maximum penalty for an advertising offence is $5,000 for an individual and $10,000 for a body corporate.

Are health practitioners allowed to endorse registered COVID-19 vaccines?

Generally, health practitioners aren’t permitted to endorse medicines or therapeutic goods. However, the TGA has confirmed that in the context of the pandemic, the relevant legal instruments do not prohibit endorsements for registered COVID-19 vaccines.

Joanna Green

Joanna Green

Principal

Anna Peddey

Anna Peddey

Senior Associate

Meenal Chand

Meenal Chand

Lawyer