Here’s What Everyone Got Wrong About The TGA’s New ‘Influencer Ban’

ILLUSTRATED BY LOUISA CANNELL
Influencer culture is a consistently contentious topic, but when The Australian published a story detailing a new ‘cash ban’ for brands working with social media influencers, the discussion subsequently reached fever pitch. The article, which was also shared in snippets via infographics on the publication’s Instagram page, claimed that the Therapeutic Goods Association — or the TGA, Australia’s medical regulator — would ‘crack down’ on influencers by banning ‘paid or incentivised testimonials for health products’. 
The post claimed that influencers could no longer be paid for posts that advertised items like sunscreen, protein powder, vitamins, supplements, medicines, skin-lightening products and ‘skincare for acne’. The response was swift, with comments reaching the thousands as what felt like the entire Australian internet weighed in on what perhaps appeared to be a heavy-handed ban. 
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Reactions were varied. While many expressed their support for the move in quelling misinformation, others conveyed that such changes would likely pose significant drawbacks for the livelihoods of social media influencers — who, at least in the health category, are overwhelmingly women and members of the LGBTQIA+ community. Then there were some who appeared to rejoice at the prospect of influencers losing income either way, which perhaps reflects a wider societal sentiment that those who embark on such a career should “get a real job”.
However, upon examining the TGA’s latest updates to the Therapeutic Goods Advertising Code, which came into effect on 1 January 2022, it appears The Australian’s post has caused some confusion, and perhaps the changes aren’t as major as initially perceived. But does that mean the rules under the new Code really won’t be detrimental to influencers, businesses or the audience that engages with them?

What does this ‘influencer ban’ actually mean?

Under the new Code, the TGA expresses that businesses can no longer engage the services of influencers for a paid partnership that involves personal ‘testimony’ for a TGA-listed product or treatment. While the partnerships of this nature had always been subject to strict regulations about what could and couldn’t be claimed, they are now no longer permitted if the influencer is offering a testimonial — such as their personal opinion or experience with the product — as part of a paid (or gifted) exchange. 
Seeking further clarification on these changes, I reached out to a spokesperson from the TGA, who told me, “Businesses can still engage with influencers for the purpose of promoting products. However personal testimonials, whether directly or implied, from anyone who is involved in the production, supply or marketing of the goods, including influencers, cannot be used.” So really, calling the updates a ‘ban’ doesn’t quite represent the changes in an accurate fashion.
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For Hannah English, a content creator and ‘skinfluencer’ who commands more than 57,000 followers on her Instagram platform alone, the updated Code will result in a significant adjustment to the way she conducts paid partnerships on her platform. English, who is also a pharmaceutical scientist, has become known for her painstakingly detailed sunscreen reviews, where she puts different formulas to the test in the hope of encouraging her audience to engage in sun-safe practices every day. She talks through everything from an SPF product’s texture to the finish, as part of both organic content and paid partnerships.
“Now I won’t be able to provide first-person testimonials in ad work, so instead of saying, ‘I like this sunscreen as it feels light on my skin and helps control shine if I’m oily’, I can only say ‘This sunscreen is mattifying and oil-free’ — which is in line with the manufacturer’s claims on the product,” she explains. 
So while influencers like English will still be permitted to engage in paid posts with an SPF brand, the TGA spokesperson says that her post can only signal endorsement. “Influencers are not prohibited from collaborating with businesses [but] any testimonials about their own personal experience with the [product] must not be used,” they state, using sunscreen as an example. 
They continue, “If an influencer was paid by a sunscreen company to be pictured holding that product, without any personal testimony, that would be an endorsement and permitted under the Code — unless the influencer is a health professional or otherwise prohibited from endorsing therapeutic goods.”
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The TGA maintains that this move will ensure there is better transparency when it comes to product reviews and recommendations on social media. “Testimonials can be inappropriately persuasive to a vulnerable audience who are seeking products for their health and sometimes very serious health conditions. The new Code ensures, as far as possible, that testimonials are unbiased and are not influenced by commercial interests or personal gain,” says the spokesperson.

So perhaps that’s a positive thing — right?

Misinformation has been a problem on social media since its inception, and the promotion of health products can be particularly precarious. Over the years, platforms like Instagram have played host to many dubious (and often dangerous) products, such as weight loss supplements. 
Most agree that restricting the promotion of TGA-listed products that could be potentially harmful is a step in the right direction, the same as they tend to support further regulation for influencers who give dishonest sponsored reviews or make false claims about what a product or treatment has done for them. 
It stands to reason that women and LGBTQIA+ creators, who we previously identified as those that promote the majority of health and personal care products, will perhaps feel some financial impact as these changes come into effect. But it could also be contended that their large, vulnerable audiences — who tend to be of a similar demographic — will ultimately benefit by being better protected against misleading advertising practices. 
According to the TGA spokesperson, “We anticipate that consumers will be more confident when they see a testimonial, that is a genuine consumer testimonial, without influence or bias.” Sounds totally fair, right? Well yes, it is — but many argue that it’s also a little more complicated.
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For one thing, the TGA doesn’t define the term ‘influencer’ under the code, so it could be difficult to ascertain just who classifies and who doesn’t. As mentioned earlier, in line with the updated standards, the TGA says the term extends to anyone “engaged in the production, marketing or supply of the therapeutic goods” — which means even business owners with a platform may not be permitted to provide a personal testimonial for their own TGA-listed product.
The tightened restrictions on sunscreen promotion have also been cause for heated debate, as many argue that it shouldn’t be classified in the same way as supplements or cosmetic treatments.  “I understand why there are guidelines — it makes sense because sunscreen is a drug, due to the rigorous testing it’s required to go through here in Aus. But I don’t think it should sit at the same level as other items on the list,” says writer and fellow ‘skinfluencer’ Natalie Fornasier, whose personal story of living with stage 4 melanoma has inspired thousands of young Australian women to get regular skin checks and wear SPF — with word spread largely via the medium of social media.
While the TGA still allows unsponsored posts containing sunscreen testimonials, influencers may feel the need to post less about SPF and prioritise paid partnerships that can support their ongoing work. “Social media platforms are where millennials and gen Z spend their time. By removing eyes from sunscreen and its importance will no doubt have an effect on how young people — the demographic most affected by this cancer — look at and treat sun safety,” says Fornasier. “[Sunscreen] needs to be in the public sphere 24/7, 365 days a year, and social media has allowed the dated messaging of ‘slip slop slap’ to be given a makeover so that people realise sun safety is, in fact, cool.”
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English agrees. “We already have strict, special advertising caveats for promoting sunscreen so it shouldn’t be too much of a stretch to allow us to talk about our user experiences, surely! Sunscreen is beneficial to the health of every single person, and should be worn daily,” she says, adding, “It’s very different to a hair vitamin that people experiencing genuine hair loss might take in the hope that it will help, and delay proper medical treatment.”
Under the updated Code, influencers like Fornasier and English will also have to delete all previous paid partnerships for sunscreen — many of which have acted as valuable resources for their audiences to refer back to whenever they had questions or were looking for a recommendation about SPF.

Does this mean that influencers will be banned from doing partnerships for things like gambling sites or alcohol, too?

Conversation around the TGA’s rules quickly turned to items that weren’t subject to the same restrictions. Why should a safe daily skin health product like sunscreen be banned from paid testimonials, but other products with the potential for damage — such as gambling apps, alcohol and tanning oils — wouldn’t be also?
“I see ads every day for tanning products that are largely oils that claim to have SPF, but we know it’s not up to code to truly be considered SPF,” says Fornasier. “These products are the ones that deserve to be regulated because they’re the ones causing skin cancer and melanoma. They’re literally designed to have your skin burn, which is skin cells in trauma.”
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Well, that’s because the TGA has no say over products and treatments that aren’t TGA-listed – things listed as cosmetics or foods don’t apply, so any updates to the Code only cover TGA-listed products. For example, if a sunscreen isn’t being sold as a primary form of sun protection (such as the additional SPF you might see in your makeup products), it isn’t considered sunscreen and is therefore categorised as a cosmetic, which isn’t governed by the TGA or its regulations.
Any non-TGA listed items that brands promote fall under Australia’s consumer law regulator, the Australian Competition and Consumer Commission (ACCC), which would mean any changes to current regulations would need to come from them. “I’d love to continue the conversation about some problematic product categories that are legitimate health risks. Tanning oils and tanning accelerators are horrific and on par with smoking, so I’d love to see legislation around limiting the promotion of unsafe sun behaviour,” says English.
A spokesperson from the ACCC told Refinery29 Australia that rules around any kind of promotion on social media remain strict. “Under the Australian Consumer Law businesses cannot mislead or deceive consumers in their advertising or marketing. This applies to advertising or marketing on social media sites, including paid-for testimonials. In relation to health-related claims, the TGA is the primary regulator and the ACCC and TGA work closely to ensure the facilitation of consumer protection.”

So, where does all that leave us?

Both English and Fornasier would like to see the TGA make some exemptions for the paid promotion of sunscreen on social media. Says English, “It would be great if we could continue to provide informed first-person reviews for sunscreens only, so that we can help people find one that they wear regularly.”
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“Half the reason people don’t wear sunscreen regularly is because they don’t know how to fit it into their lifestyles, or they think it doesn’t feel nice on the skin. I hear from people daily that wear sunscreen regularly now because I’ve helped them find one that works for them and their preferences — and they’ve converted family and friends too. That’s a huge deal for public health, all thanks to first-person testimonials both paid and unpaid.”
Ava Matthews, co-founder of wildly popular Australian SPF brand Ultra Violette, concurs that experiential product reviews are crucial when it comes to helping someone find the right sun protection for them. “Getting an idea for the finish of a sunscreen and how the product feels on the skin goes a long way in helping someone choose an SPF that they’ll actually enjoy wearing every day,” she says. “Influencers and social media, in general, have given consumers this information in a way that feels relatable, so we’ve been able to make huge progress in the conversation around sun protection.”
The TGA maintains that it makes changes to its Code in regular consultation with the Therapeutic Goods Advertising Consultative Committee, which is made up of members from consumer, health professional, industry, media and government bodies. “Each time a full review of the Code is undertaken, as it was in 2020 to 2021, all provisions are reviewed, said the spokesperson. “Sunscreens can be widely promoted under the existing rules.”
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