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30 BUSINESS THROUGH INNOVATION LEGAL IREVISED ADVERTISING GUIDELINES FOR PHARMACISTS f you operate a pharmacy or are involved in the advertisement of any regulated health services, you should be aware of the recent changes to the ‘Guidelines for advertising a regulated health service’. These changes will affect how health services can be advertised and will carry penalties for individuals and companies that don’t comply. A health service can include services such as: • Pharmaceutical services. • Services provided by registered health practitioners. • Hospital services. • Mental health services. • Ambulance services. • Community health services. • Health education services. • Pathology services. The National Boards and the Australian Health Practitioner Regulation Agency (AHPRA) released the revised guidelines in November, with the changes set to take effect from 14 December 2020. The guidelines require anyone who advertises a regulated health service to comply with the advertising requirements of the ‘Health Practitioner Regulation National Law’ of their respective state or territory, regardless of whether they’re a health practitioner or not. The guidelines have been completely restructured, with some of the noteworthy changes being that: • Clarification has been provided regarding the use of the title ‘Doctor’ or ‘Dr’. This term can be used in advertising, so long as it is followed by specification of the profession a practitioner is registered to. For example, ‘Dr Smith (pharmacist). • When an advertisement offers a gift or discount to attract someone to use a regulated health service, advertisers must state where consumers are able to find the full terms and conditions. This can be via a link or through the advertiser’s website, so long as they are easily accessible to the consumer. • More comprehensive guidance is included in the guidelines on what is and isn’t acceptable evidence to substantiate claims made in advertisements. Why is this change important for me? Penalties A registered health practitioner (eg, a pharmacist) or a business that provides a regulated health service must comply with the requirements set out in the National Law and the guidelines when advertising. Not complying with these requirements may result in prosecution, and the offender can be ordered by a court to pay a fine of $5000 per offence (for an individual) or $10,000 per offence (for a body corporate). Particular care should also be taken when advertising using protected titles. A protected title is a title given to someone registered in a specific profession, such as a pharmacist or a dentist (‘Doctor’ and ‘Dr’ are not protected titles as they’re not specific to a profession). If an advertisement breach is in relation to the use of a protected title, this is not only a breach of the guidelines, but also an offence under the National Law. A breach of this nature can amount to a fine of $60,000 (for an individual) or $120,000 (for a body corporate). Disciplinary action When a registered health practitioner breaches one of the requirements detailed in the National Law or the guidelines, the National Board may determine that the breach raises concerns in relation to the practitioner’s conduct, which may result in further investigations and disciplinary proceedings. Any action taken against a pharmacist under the National Law can lead to a range of serious punishments, including restrictions on a pharmacist’s registration, which may seriously affect their ability to practise in the profession. Therefore, it’s essential to a pharmacist that they ensure full compliance with the advertising requirements set out in the National Law and the guidelines. Further considerations If AHPRA receives, in relation to advertising, a complaint that is relevant to the ACCC or TGA, it can also refer the complaint to one of these bodies to deal with accordingly. The ACCC ensures compliance with Australian competition, fair trading, and consumer protection laws, while the TGA regulates activities in relation to therapeutic goods to ensure they’re compliant with Australian standards. Health practitioners should be conscious of their obligations in relation to these bodies, so as to implement more effective and compliant marketing. By Peter Clinch. Principal, Clinch Long Woodbridge Lawyers Peter Clinch is Principal at Clinch Long Woodbridge Lawyers, a Sydney-based law firm with a focus on pharmacy. Peter assisted many pharmacists with a broad range of issues affecting their businesses. Inquiries: pclinch@clw.com.au or 02 92794888. RETAIL PHARMACY • JAN/FEB 2021