Advertising agricultural and veterinary chemical products

Advertising

Before an agricultural or veterinary chemical product can be legally imported, supplied, sold, used, promoted or advertised in Australia, the APVMA must register it. Part of the APVMA's role and responsibility is to monitor and enforce compliance of agricultural and veterinary chemical products in the market place.

Each year the APVMA receives many enquiries and complaints about advertising and promotional material for agricultural and veterinary chemical products. The Agvet code considers publication in its broadest sense, by any means. Publish is clarified to also include: in a newspaper or periodical, by broadcasting or televising, and in film or video recording.

The following questions and answers have been prepared to provide general guidance only. You should become familiar with the legislative provisions and seek professional advice if in doubt.

Who is liable for the promotion and advertising of unregistered agricultural and veterinary chemical products and unapproved active constituents?

Persons who commission, transmit and publish information all hold responsibility for ensuring that information complies with national agvet law.

Section, 88 of the Agvet Codes defines the responsibilities of persons, including publishers and advertisers in relation to the promotion and advertising of agricultural and veterinary chemical products and active constituents. Obligations under the Agvet Codes extend not only to the person who commissions an advertisement, but also to the publisher of that advertisement.

Section 88 of the Agvet Code relates to the publication of notices which offer to sell or invite to buy an unregistered agricultural or veterinary chemical product or unapproved active constituent.

Certain exemptions apply to section 88 of the Agvet Code.

Contravention of these provisions can lead to enforcement action and civil and criminal penalties may also apply.

A maximum penalty of $8,500 (for an individual) and $42,500 (for a company) may be imposed for each offence under section 88 of the Agvet Code, upon conviction.

A publisher should take all reasonable steps to ensure that advertising or promotional material they propose to publish complies with the Agvet Code. A publisher may request an advertiser to provide evidence that a chemical product is registered, or does not require registration by the APVMA before publishing the advertisement or promotional material.

Alternatively a publisher may request the person placing the advertisement to state in writing that they are aware of the requirements of the Agvet Code and that the material provided is not in breach of the codes.

Information included on registered product labels

Section 84 of the Agvet Code specifically deals with claims made on product labels. Persons must not make any claim, or permit any claim to be made in respect of a registered chemical product that is not consistent with the approved label for that product.

Only in certain limited circumstances (for example, where the particular claim has been exempted by the APVMA or where a person is authorised to make such a claim by way of an approved APVMA Permit) can a claim may be made that is not consistent with the approved label.

Contravention of this provision can lead to enforcement action and civil and criminal penalties may also apply. A maximum penalty of $51,000 (for an individual), and $255,000 (for a company), may be imposed for each offence under section 84 of the Agvet Code.

Do I need to include an approval number in the advertisement or promotional material?

No. It is not a requirement that the APVMA approval number of a product appears in the advertising or promotional material. The approval number may be included at the discretion of the advertiser and/or publisher.

What claims can be made about a registered agricultural or veterinary chemical product?

All claims made about a registered chemical product, must be consistent with the instructions on the approved label, unless the APVMA has exempted such a statement or has issued a permit to allow such a statement.

Information on the approved label includes instructions that relate to the circumstances in which a product may be used, how the product may be used, stored, disposed of, as well as information that relates to the safe use and handling of the product. Advertising or promotion of a registered product for a purpose that is not consistent with the approved label, or with claims that are false or misleading, is an offence under the Agvet Code.

Are some statements prohibited even when agricultural or veterinary chemical product is registered?

Yes. The publication of certain statements about any agricultural or veterinary chemical product is prohibited under section 89 of the Agvet Codes. Such statements include:

  • False or misleading information
  • Claims that either state or imply that the APVMA guarantees, warrants or assures the safety or efficacy of a chemical product
  • Statements which expressly or impliedly claim (however the claim is stated), without any qualification or with a qualification that, in the APVMA's opinion, is unjustified, to the effect that a chemical product is natural, organic, safe, harmless, non-toxic, non-poisonous, non-injurious or environmentally-friendly
  • Claims, which either state or imply that the APVMA or any Commonwealth, State, or Territory Department recommends the use of a chemical product
  • Claims which either state or imply that a chemical product has a particular quality, based on qualities which are prescribed for that type of product in the Agvet Code Regulations.

Certain exemptions apply to section 89 of the Agvet Code.

Contravention of these provisions can lead to enforcement action and civil and criminal penalties may also apply.

A maximum penalty of $8,500 (for an individual) and $42,500 (for a company) may be imposed for each offence under section 89 of the Agvet Code, upon conviction.

Does the APVMA approve or provide advice on advertising?

In general, the APVMA and its employees are not authorised to, and will not, give any 'approval' or advice about whether or not a particular advertising or promotional claim would give rise to breach of any of these provisions of the Agvet Code and Agvet Code Regulations. Persons responsible for the advertisement and publishing should seek their own legal advices on these matters.

Can testimonials be used in advertising and promotional material?

Yes. Testimonials can be used for the advertising and promotion of a registered product where the information in that testimonial is consistent with the approved label of that product. Statements or claims made in a testimonial for the promotion of a registered chemical product that are not consistent with the approved label of that product may contravene the Agvet Code.

Care must also be taken when advertising products that would not otherwise require registration. Claims, including testimonials, made about a product may cause the product to fit the definition of an agricultural or veterinary chemical product, hence requiring that product to be registered.

More information about acceptable claims is available here

What statements can be made or reported in scientific papers, journals, or presented at a conference?

Regulation 43 of the Agvet Code Regulations provides clarification for Section 89(3) of the Agvet Code. It provides guidance on information that may be included or stated in scientific papers, literature or reports, presentations, conferences, seminars, meetings or discussion about chemical products.

In summary the statement must be based on data published in (or of a publishable standard for) a reputable, refereed scientific journal and it must not be made for the purpose of promoting the product (registered or unregistered).

Regulation 43 does not permit any statement to be made that would contravene Section 84 of the Agvet code.

Persons wishing to publish or present such information should refer to section 89 of the Agvet Codes and regulation 43 of the Agvet Code Regulations. Information reported in these circumstances must not be used for the purpose of advertising or promoting the product for supply or inviting offers to buy in situations that are not consistent with the approved label.

Can agricultural and veterinary chemical products be promoted prior to registration?

Yes. The promotion of agricultural and veterinary chemicals prior to registration is permissible only in circumstances where an application for the approval of the active constituent or registration of the product has been lodged and accepted by the APVMA. The promotional material must clearly state that the active constituent is not an approved active, or the product is not registered, but an application for approval or registration has been lodged with the APVMA.

Without inclusion of the above clarification, any advertisement or promotional material that offers to sell or invites the making of offers to buy an active constituent that is not approved or a chemical product that is not registered would contravene section 88 of the Agvet Code.

Will promotional claims cause a product to fit the definition of an agricultural or veterinary chemical?

It is possible for a statement or claim to bring a product under the definition of an agricultural or veterinary chemical product. In conjunction with the definitions of an agricultural or veterinary chemical product outlined earlier, the Agvet Code Regulations provide further clarification about which products do, and do not constitute an agricultural or veterinary chemical product. According to the definition of agricultural or veterinary chemical product, a product may require registration on the basis of its represented effect (i.e. if the claims, including a purpose or a claim that may be inferred from the product name are consistent with the definitions in the Agvet Codes, the product must be registered).

Can a product subject to a permit be promoted or advertised?

An APVMA permit is unable to excuse the offence provisions relating to advertising and publication. Consequently notices offering to sell or inviting offers to buy unregistered chemical products subject to a permit may contravene the Agvet Code.

How can products that are declared not to be agricultural or veterinary chemical products be advertised or promoted?

The declaration of products not to be agricultural or veterinary chemicals is usually subject to qualifications. For example 'any soil ameliorant, conditioner or fertiliser if the product is not claimed to have any effect as a regulator of plant growth'.  When advertising or promoting products that do not require registration, all claims should be carefully considered to ensure the represented effect of the product does not bring it within the definition of an agricultural or veterinary chemical product. The represented effect of a chemical product may be stated or inferred from the product name, by the claims made on the product label or in advertising and promotional material associated with the product.

Persons responsible for the advertising and promotion of a product that may be declared not to be an agricultural or veterinary chemical product should consult the Agvet Code Regulations to ensure that any proposed promotion is compliant with the law.

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