Conviction for unlawful advertising of sports supplements

A man has been convicted for the unlawful advertising of sports supplements under the Therapeutic Goods Act 1989 (the Act), following an investigation conducted by the Therapeutic Goods Administration (TGA), part of the Department of Health.

On 29 July 2020, the ACT Magistrates Court convicted the former owner of a Canberra-based sports supplements company on four charges of unlawful advertising of therapeutic goods.

The man was required to give security of $1,000 and be of good behaviour for a period of 12 months in accordance with the Crimes Act 1914.

Criminal prosecutions are an important enforcement tool the TGA can use to address serious non-compliance. In addition to sanctions handed down by a court, a criminal conviction can have serious and far-reaching consequences in other ways. For example, a criminal record can cause difficulties with overseas travel, securing employment, renting housing and obtaining finance. The penalties imposed for any subsequent convictions are also likely to be harsher.

In this particular case, the man was convicted for advertising therapeutic goods (sports supplements) not included in the Australian Register of Therapeutic Goods (ARTG), and those goods were neither exempt nor excluded from the operation of the Act. Unless a specific exemption, approval or authority applies, therapeutic goods must be entered in the ARTG before they can be lawfully advertised or supplied in Australia.

The man was also convicted for advertising prescription only medicines. The Act prohibits advertising to the general public of a substance, or a good containing a substance, included in Schedule 4 (prescription only medicine) of the current Poisons Standard.

The TGA's investigation was part of Operation Centaurus that targets offences in relation to image and performance enhancing drugs.

Understand how your sports supplements are regulated

'Sports supplements' is a broad category of products that carry claims relating to sport, fitness or recreational performance. In Australia, a sports supplement, like many other products for oral consumption, can be classified as either a food or a medicine in law depending on the specific combination of ingredients, claims and overall presentation.

An increasing number of sports supplements are being brought to market in Australia as foods. Although this is appropriate for many of these products, it is not for others, such as those containing high risk substances like prescription medicine ingredients, and may be illegal.

The TGA has made a legislative instrument under section 7 of the Act to help protect Australian consumers from the unsafe use of certain sports supplements. This instrument clarifies that certain sports supplements (those that include higher-risk ingredients or are in the form of a tablet, pill or capsule) are therapeutic goods, ensuring they are appropriately regulated as medicines.

From 30 November 2020, in order for sports supplements with therapeutic claims containing higher-risk ingredients to be advertised and supplied, they must be included in the ARTG. They must also meet legislated requirements that ensure the safety, quality and efficacy for medicines, including advertising.

Visit the TGA website for more information on:

• changes to the regulation of sports supplements in Australia
• sports supplements.

Advertisers will be held to account for breaches of the Act

The regulatory scheme is critical to the safety of Australian consumers and the TGA investigates suspected illegal activity in relation to therapeutic goods. A range of compliance and enforcement tools are available and may include criminal or civil court proceedings, which can result in substantial penalties, fines or imprisonment.

The TGA has published a recent summary of compliance outcomes.

Any person, including businesses, advertising therapeutic goods to consumers must comply with the requirements for advertising. The TGA encourages people to report suspected non-compliant advertising via its advertising complaints form.

Visit the TGA website for tips about how to spot a dodgy health product.