Cooking up therapeutic claims: TGA fines Pete Evans for advertising breaches.

Businesses advertising and selling consumer products should review claims made in advertisements and on their website, and labels, to ensure that they do not unintentionally include therapeutic claims or restricted representations, including references to COVID-19. With a burgeoning consumer focus on immunity, wellness, functional foods and active beauty products, advertisers must be clear on what can and cannot be claimed about their products, and what types of claims will trigger the product becoming a Therapeutic Good regulated by the Therapeutic Goods Administration (TGA).

The TGA’s action against Pete Evan’s company Peter Evans Chef Pty Ltd, is an example of TGA’s enforcement approach to advertisers making therapeutic claims and restricted representations, particularly amongst the heightened public concern around the COVID-19 pandemic. The TGA issued 2 infringement notices and a penalty of $25,200 for breaches under the Therapeutic Goods Act 1989 (Cth) (Act) in relation to a Facebook live stream posted on Mr Evans’ page in early April. In the footage, it is alleged Mr Evans promoted a ‘BioCharger’ device and claimed it could be used in relation to the ‘Wuhan Coronavirus’.

After receiving a number of complaints, the TGA investigated and has now clarified this claim ‘has no apparent foundation’.

The second infringement was issued for failing to comply with the regulatory framework for Therapeutic Goods. This includes registering or listing on the Australian Register of Therapeutic Goods (ARTG) and compliance with the Therapeutic Goods Advertising Code. Importantly, the requirement to comply with that framework was triggered because the company made therapeutic claims about the BioCharger, not because of the inherent nature of the product. The claims made on the company’s website, www.peteevans.com, included that the product is ‘proven to restore strength, stamina, co-ordination and mental clarity’. As the BioCharger device was represented as being for therapeutic uses, it is considered a therapeutic good under the Act.

Key takeaways for businesses:

• Review all advertising material and labels for therapeutic claims and get advice if you are unsure if a claim is therapeutic.
• A consumer good can become a therapeutic good regulated by the Act simply because of the wording on the label or your website.
• Stories or other temporary or transient social media marketing channels must comply with the Act and are not beyond the reach of regulators.
• The TGA is taking a strict enforcement approach to claims or representations concerning COVID-19.
• Therapeutic goods must be entered on the ARTG before they can be lawfully supplied or advertised in Australia.

For details of all of our COVID-19 tips and updates, visit the Bespoke COVID-19 Hub.