By Catherine Oh, Director, Regulatory & Supply Chain Strategy at Accord Australasia
‘I love the feel of my sunscreen!’ Well, that may be so, but if you have been paid to appear in an advertisement, I’m afraid you can’t make that statement. You love the feel of your moisturiser? Go right ahead and say it. ‘I love the feel of my moisturiser!’ is a perfectly acceptable statement in advertising, even if you were paid to appear in an ad.
Confused? You’re not alone. While ‘regulatory nerds’ like me are used to some strange practical outcomes of ‘regulatory boundaries’ that divide the regulatory treatment of one product from another, not everyone is cut out to be (or, shock horror, wants to be!) a regulatory nerd.
The regulatory boundary here is one that divides ‘therapeutic goods’ from ‘cosmetic products’. Some products that consumers perceive to be cosmetics are actually therapeutic goods. These include some oral care products, some hand sanitisers, and—most relevant for this article— sunscreens: all ‘primary’ and some ‘secondary’ sunscreens that are moisturisers*.
A recent change in the Therapeutic Goods Advertising Code (TGAC) means that ‘incentivised’ testimonials are not allowed for therapeutic goods. That is where the person making the testimonial may feel compelled or encouraged to make the testimonial. A very obvious example is an influencer being paid to appear in an ad to talk about their personal experience of using the product.
Accord Australasia, as the peak body representing the cosmetics industry, has been arguing for the importance of maintaining sunscreen advertising. Including those ads containing testimonials relating to aesthetic aspects of sunscreen such as texture, skin feel and fragrance, as these factors can encourage people to try new sunscreens or to use them effectively as part of sun protection.
Accord is grateful to the Therapeutic Goods Administration (TGA) and the Therapeutic Goods Advertising Code Committee (TGACC) for allowing us to present our case and deliberating the merits. However, the ban on incentivised testimonials has been retained. It seems that the actions of an unscrupulous few may have unfortunately eroded the trust in industry.
This does not mean that the advertising of sunscreens must stop. The industry should continue to promote the benefits of using sunscreen and encourage people to apply it correctly (as well as encourage other sun-safe behaviours). It’s just that advertising cannot contain testimonials—statements that include the words ‘I’, ‘me’ or ‘myself’. Ads can still show people using the product and contain statements on the benefits of the product. For example ‘light skin feel’ is allowed while ‘I love the light skin feel’ is not.
What about cosmetic products you ask? Incentivised testimonials are still allowed for cosmetic products. Of course, as always, they must meet the Australian Consumer Law requirements including being truthful, not exaggerating the benefits of the product not misleading consumers, and including full disclosure of the commercial relationship.
If you are unsure of the full advertising requirements for your therapeutic goods or cosmetic products, a good place to start is the TGA’s Guidance on applying the Advertising Code rules and the Australian Competition & Consumer Commission (ACCC)’s Advertising and Selling Guide, respectively. It’s also good to remember that the ACCC’s rules apply to therapeutic goods as well as to cosmetic products but the TGA’s rules do not apply to cosmetic products.
And while we are on the topic of advertising, check out the recently released ACCC report Greenwashing by businesses in Australia – findings of the ACCC’s internet sweep of environmental claims.
It’s a good reminder of businesses’ obligations under the Australian Consumer Law with regard to advertising, particularly for environmental claims.
*The main purpose of a ‘primary’ sunscreen is as a sunscreen. The main purpose of a ‘secondary’ sunscreen is as a cosmetic product (e.g. moisturiser, lipstick, foundation) with a ‘secondary’ benefit of sun protection.
This article was first published in the Winter 2023 issue of Retail Beauty: