The Therapeutic Goods Administration says it will investigate ‘alleged non-compliance’ with laws governing advertising of medical devices
Facebook ads were used to push unapproved rapid test kits to Australians, prompting a warning from the regulator, while users offered large volumes of rapid tests on Facebook marketplace, contrary to its rules.
But a search of Facebook’s marketplace and buy, swap, sell groups shows users are easily skirting around the ban, sometimes selling significant volumes of rapid tests.
One user based in Sydney’s northern beaches, for example, is using Facebook marketplace to take orders for the JusChek brand rapid test, an approved brand, which will be met by placing a “bulk order through my business”.
Users are asked to pay upfront for a future delivery that may arrive in “mid-February”.
Three others were using Facebook to sell 20-packs of Panbio-branded tests, which are approved, in Sydney for between $200 and $300.
Another listing offers unboxed kits on Facebook marketplace for $20 per test. It is against the law to sell tests without the proper instructions and it can be illegal to repackage and relabel kits.
All of the marketplace listings were removed by Facebook after questions from the Guardian.
Facebook has also pushed paid ads from foreign companies to Australian users which advertised unapproved rapid test devices.
The Guardian found two separate ads marketing the BinaxNOW rapid test to Australians. That device has not been approved by Australia’s Therapeutic Goods Administration.
The advertising of medical devices is strictly regulated by law in Australia, including on Facebook.
A TGA spokesperson said it would investigate “alleged non-compliance and take appropriate compliance action, if required”.
“The advertising of rapid antigen tests, whether that’s through Facebook, an online marketplace such as eBay, or any other means, must comply with the Act, the Therapeutic Goods Advertising Code (Instrument) 2021 and the advertising requirements set out in the Therapeutic Goods (Restricted Representations – Covid-19 Rapid Antigen Tests) Permission 2022,” a TGA spokesperson said.
Another small company, based in Australia, was paying Facebook to push ads for the sale of the Clungene rapid test device, which is approved.
The ads linked to a sales website that uses the TGA logo to help promote the device, something also prohibited by the regulator.
The website included reviews from two customers. Reverse Google image searches reveal the pictures of both customers are stock images used across multiple unrelated websites for reviews.
A spokesperson for the website denied the reviews for its rapid tests were fake: “Customer reviews are not fake, however the images used are. The customers leaving the reviews did not want their photos on the website whatsoever, which is fair enough to us!”
The TGA logo was removed after the Guardian’s questions.
A spokesperson for Meta, the company behind Facebook, said it had removed the advertisements and marketplace listings identified by the Guardian.
“We’ve removed these ads and Marketplace listings because we prohibit anyone from selling Covid-19 test kits on our platform and are always working to stop efforts to circumvent our rules,” the spokesperson said. “While enforcement is not perfect, we have put several automated detection mechanisms in place to block or remove this material from our platform. We strongly encourage people to report any content that violates our policies.”
Email: sign up for our daily morning briefing newsletter
The shortage of rapid tests has undermined Australia’s response to Omicron and led to price gouging. None of the Facebook listings seen by the Guardian appeared to be advertising tests for more than the permitted amount.
On Monday, the Australian Competition and Consumer Commission chair, Rod Sims, said the watchdog had referred retailers charging “beyond outrageous” prices to the federal police for investigation.
“We have also had reports that look as if people have bought the goods … and then on-sold them at more than 20% markup and that is illegal under the government’s recent announcement, and we are referring anything that looks of that nature to the Australian federal police,” Sims said.
Union leaders have accused the federal government of putting workers in harm’s way by failing to provide free and accessible tests. They have threatened industrial action, prompting a scathing response from the treasurer, Josh Frydenberg, on Tuesday.