Activewear retailer Lorna Jane has recently received infringement notices from the Therapeutic Goods Administration (TGA) totalling $39,960 for alleged unlawful advertising in relation to COVID-19. Lorna Jane allegedly claimed that its ‘anti-virus activewear’ prevents and protects against infectious diseases, implying it was effective against COVID-19.

The TGA took the view (as outlined in its press release) that:

•  Lorna Jane represented that its ‘anti-virus activewear’ had a therapeutic use, making it a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (the Act).  Such goods and the associated advertising of those goods are subject to regulations administrated by the TGA;
• The advertisement referred to therapeutic goods that were not included in the Australian Register of Therapeutic Goods, which is a requirement before they can be lawfully supplied or advertised in Australia;
• Under the Act, any references to COVID-19 (and related terms) are restricted representations and require a formal approval or permission from the TGA before they can be made; and,
• It is also a breach of the Therapeutic Goods Advertising Code (No. 2) 2018 to promote a therapeutic good as being safe, harmless or without side effects.

The TGA has issued warnings to advertisers and consumers in relation to the COVID-19 pandemic, including reminding advertisers that it will take action in relation to illegal advertising of therapeutic products and that:

• Criminal offence and civil penalty provisions apply to illegal advertising of therapeutic goods; and,
• the TGA is monitoring non-compliance, particularly in relation to the advertising of products that claim to prevent or cure COVID-19 and it will take the necessary action in relation to those requirements.

This is a timely reminder that advertisers need to be careful when advertising therapeutic goods especially against the backdrop of a global pandemic and must ensure compliance with the Act and regulations at all times. Care must be taken to ensure that your business does not make false or misleading claims.

If you have any questions or concerns relating to any of the information in this blog or you require assistance, please do not hesitate to get in touch with a lawyer in Coleman Greig’s Commercial Advice team, who would be more than happy to assist you.