Guideline No. 04 - Testimonials and Professional Endorsement

Where a product is classified as a "medicine" or "medical device" then either testimonials or professional endorsement are essentially in breach of section 58 of the Medicines Act.  Both are therefore prohibited. A testimonial is essentially an uncontrolled anecdotal report of the beneficial effect of a product or treatment of one individual.  The reasoning behind this is that testimonials are almost always anecdotal without professional observation and without the relevant objective scientific indicators.  They also may not necessarily be translatable to the population as a whole.

Healthcare professional endorsement covers medical practitioners, nurses, pharmacists or any person qualified to provide therapeutic treatment in the course of a profession or occupation and registered under any enactment as a person so qualified.

For natural, herbal, marine, or dietary supplement products not classified as medicines, testimonials are possible but with some very important provisos.  First a testimonial for this group of products would be in breach of the Medicines Act if a therapeutic claim were made in the testimonial.  These types of testimonials are therefore prohibited for these products.  A testimonial for this type of product should not make a therapeutic claim, and should not either directly or by implication suggest that the product has beneficially affected the health of a person.  Testimonials often stretch the credibility of a product and may be best avoided.  Requirement 7  of the Code for Therapeutic Advertising covers the issue of testimonials with the useful summary that "Testimonials, in advertisements, where not prohibited by law, must comply with the Code."  It is probably important to have written consent of the person giving the testimonial.

Endorsement by any health professional i.e. a person qualified to provide treatment in the health area is a breach of section 58 of the Medicines Act for any product classified as a "medicine".  This precludes doctors, pharmacists or other health professionals endorsing or promoting a "medicine".  Particular care is needed to avoid even the perception of this when people in "white coats" are included, which can give the perception of the authority of professional endorsement.  The reasoning is that it tends to give "undue authority" to support for a particular product.  Care is therefore needed re shots of pharmacies or surgeries where there is the perception of healthcare professional endorsement if a pharmacist or doctor in a white coat is portrayed.

Whilst professional endorsement is possible for natural, herbal, marine or dietary supplement products it will again be important not to breach the Medicines Act by making a "therapeutic claim" within the context of  healthcare professional endorsement.  Likewise professional endorsements of this kind are prohibited. Care would again be needed in the treatment of endorsement for this group of products.  If healthcare professional endorsement for the natural, herbal, marine or dietary supplements is being used then it is advisable to have the written consent of the health professional or the appropriate body e.g. the Heart Foundation, the Cancer Society.

A conservative approach regarding testimonials should be taken because of the very broad wording of section 58 of the Medicines Act quoted below.  Because of this it is wise to avoid any implication/suggestion of a testimonial as this is likely to be in breach of section 58 of the Medicines Act and in the event of a court judgement it would be difficult for a court not to find an advert in breach of this section of the Medicines Act.  See Section 58 [c] iii below.

Requirement 6 of the Code for Therapeutic Advertising also includes endorsement by government and professional bodies.  Essentially the Medicines Act does not allow the endorsement by Medsafe or the government of a product classified as a medicine.  Endorsement by professional bodies for medicines would need the prior written consent of the particular body.  A similar approach would be necessary for the natural, herbal, marine or dietary supplement products so that it is clear that written consent exists for any such endorsement.

Section 58 of The Medicines Act is below.

58. Further restrictions on advertisements

(1) Subject to section 60 of this Act, no person shall publish, or cause or permit to be published, any medical advertisement that-

(a) Directly or by implication claims, indicates, or suggests that medicines of the description, or medical devices of the kind, or the method of treatment, advertised will prevent, alleviate, or cure any disease, or prevent, reduce, or terminate any physiological condition specified, or belonging to a class of disease or physiological condition specified, in Part 1 of Schedule 1 to this Act; or

(b) Directly or by implication claims, indicates, or suggests that medicines of the description, or medical devices of the kind, or the method of treatment, advertised will prevent or cure any disease, or prevent or terminate any physiological condition specified, or belonging to a class of disease or physiological condition specified, in Part 2 of Schedule 1 to this Act; or

(c) Directly or by implication claims, indicates, or suggests that a medicine of the description, or a medical device of the kind, or the method of treatment, advertised-

(i) Is a panacea or infallible; or

(ii)      Is or has been used or recommended by a practitioner, nurse, or pharmacist, or by any other person qualified to provide therapeutic treatment in the course of a profession or occupation and registered under any enactment as a person so qualified, or by a person who is engaged in study or research in relation to any of those professions or occupations or the work performed by persons employed therein; or

(iii) Has beneficially affected the health of a particular person or class of persons, whether named or unnamed, and whether real or fictitious, referred to in the advertisement.