What the TGA published

The TGA announced the guidance on 29 September: We have published new guidance to help journalists and news organisations understand when media reporting on therapeutic goods may be regulated as advertising. The guidance itself, dated 28 September, rests on one idea: If content looks like news, but functions to promote a therapeutic good, it is likely to be regulated as advertising. It says the principles apply to print, broadcast and digital media alike.

It lists signs that an article is promotional: favourable detail about a product, class of goods or brand, benefits stressed and risks played down, words such as “breakthrough”, endorsement-style testimonials, a product presented as the only or preferred treatment, and content that is developed, commissioned, coordinated or materially influenced by entities that have a commercial interest in the sale of the goods. Four worked examples follow: a fish oil research story, a sponsored question-and-answer piece about a prescription medicine, a newspaper story on weight loss injections, and a sponsor-branded article on healthy ageing.

The stakes are set in the Therapeutic Goods Act 1989. The two general civil penalty provisions for advertising, sections 42DLB and 42DMA, each carry a maximum of 5,000 penalty units for an individual and 50,000 for a body corporate. At the $364 penalty unit set from 1 July 2026, the corporate figure for a contravention on or after that date is $18.2 million.

The two exceptions, and who gets them

The first is in the Advertising Code. Section 6(3) says This Code does not apply to genuine news that is broadcast or published in any medium by a broadcaster, a datacaster, the SBS, or a person of a kind the Regulations prescribe.

The second is in the Act. Sections 42DLB(10) and 42DMA(2) switch off those civil penalties for the same four kinds of person where, as a result of steps taken by the person, it was reasonable for the person to assume that the advertisement complied with the Therapeutic Goods Advertising Code (42DMA’s wording; in 42DLB the assumption is that none of the section’s listed contraventions, such as a prohibited or restricted representation, applied). The guidance also mentions others who cause non-compliant advertising; the Act’s text names no one beyond the four.

Regulation 7A of the Therapeutic Goods Regulations 1990, headed “Publisher exception for civil penalty provisions”, does the prescribing. The kind of person is a publisher of a print edition of a newspaper or magazine that is or was available to the public by way of purchase in Australia. The current regulation 7A was inserted in 2018 (a regulation of that number existed from 2000 to 2003), the year sections 42DLB and 42DMA were added to the Act.

Three things follow from those words, on our reading. A paid title’s genuine news is covered in any medium, so its website is inside the Code exception, not only the printed page, provided the same publisher runs it. “Is or was” appears to reach a title that once sold a print edition and has since stopped. And a publication that has never been sold, such as a free community paper or a letterbox magazine, or a news site with no print edition at all, is not a kind of person the regulation names. The guidance itself warns that These exceptions do not apply uniformly in all circumstances.

Where sponsored content stops being news

The Code exception covers genuine news, and the guidance’s sponsored examples show where content stops being news. A question-and-answer piece sponsored by a company that markets a GLP-1 medicine, citing a trial that company sponsored, is in the guidance “likely” to be advertising, and it lists the advertising rules the piece may break, starting with the ban on advertising prescription medicines to the public. A healthy ageing article carrying a medicine sponsor’s name but mentioning no product is “unlikely” to be: Brand sponsorship does not necessarily make content advertising. It adds that buy-now links and calls to action push content the other way.

What it means for a print business

Our view. For a publisher deciding whether to keep a paid print edition, this belongs on the list: a status in therapeutic goods law that, on the regulation’s words, outlasts the last paid issue. It is not a licence. The Code exception is only for genuine news, and the penalty exceptions still need the steps that make compliance a reasonable assumption. The criminal advertising offences in sections 42DL and 42DM have no publisher exception at all.

The line itself sits in an odd place. The guidance’s own test for genuine news is about the content: accuracy, balance, independence, evidence, no commercial influence. The regulation’s test is whether a copy was ever sold. A free local paper doing careful health reporting sits outside the publisher class, while a paid title’s advertorial gets no Code exception, because it is not news. If the Regulations are reviewed, that is worth raising. A free paper’s real protection is that careful, independent health news is, on the guidance’s own test, unlikely to be advertising at all. Until then, a free title or a contract publisher producing health content for a pharmacy group or a health fund should assume no publisher exception covers its health content, because on the words, none does.