Look In Existing Regs For Social Media Marketing Guidance, Experts Say

Firms waiting for FDA to issue guidance on the use of social media for marketing and promotion can look instead at existing regulations both in and outside the agency, experts said recently.

And they may have no choice. Attendees at the April 6 Food and Drug Law Institute annual conference were reminded that draft guidance for use of social media was due in 2010 and then in the 2011 first quarter – and the wait continues.

Regulators may never fully keep up with the rapidly changing online environment anyway, suggested Jeffrey Wasserstein, a director at the law firm Hyman, Phelps & McNamara.

"FDA regulations are already outdated. If they issue a guidance it will be stale about two weeks after it's issued," Wasserstein said. "There is absolutely no way they can keep up with the changing technology. [But] there are legitimate ways to use social media tools."

FTC Offers Some Answers

The Federal Trade Commission Act prohibits deceptive or unfair acts or practices that occur in commerce, and the agency last year released updated guides on how the law applies to endorsements and testimonials.

According to FTC staff attorney Stacey Ferguson, those recommendations can extend to social media, which often is used by advertisers to reach targeted audiences. Whether employing viral and stealth marketing, blogs, blog advertising or social networking sites such as Facebook, firms must adhere to truth-in-advertising rules, she said.

While aspects of the law may continue to be reinterpreted, “the FTC Act does not change," she observed.

Under FDA’s updated guidance, disclosure is required when an advertiser has paid for a study touted in an ad, as well as when an author paid (or did not pay) for products he or she is reviewing.

By the same token, bloggers now must disclose when they are compensated or receive a free product (Also see "FTC Addresses Confusion Over Updated Endorsement Guides" - HBW Insight, 11 Oct, 2010.).

"Advertisers have to monitor bloggers and take steps to halt publication of any deceptive things when discovered," Ferguson said.

FDA Provides Clues In Past Actions

Jeffrey Senger, former FDA acting chief counsel and deputy chief counsel, gives FDA credit for moving away from its position of relative noninvolvement a few years ago when it addressed the broadening array of marketing venues available to companies with the blanket statement: “It’s not the medium; it’s the message.”

A partner at Sidley Austin, Senger said: "This [movement] is huge and getting huger. FDA is aware of that and is up to the minute, itself, using social media in a number of ways.”

Senger is confident that FDA will publish thorough draft guidance after working with an unusually high number of interested parties.

"This is a tricky issue," he said. "A lot of constituencies are interested in it. If FDA is doing its job right, as I am sure they are, they are trying to coordinate within the community of regulated entities as well as within the government."

According to Senger, FDA has offered insight into its enforcement mentality with past actions. For example, the agency determined in 2009 that advertising links for drugs posted on Google violated advertising rules, in part because they lacked risk information and the established generic product name "and in some cases broadened the indication."

He acknowledged, however, that FDA has much to consider in shaping guidance on the subject. The undertaking will have to address peculiarities such as Twitter's 140-character limit, or Google links with 70-character limits in text and 25-character limits in the title, which afford little room for the detailed text required to satisfy existing rules.

FDA also must decide how to govern corporate behavior in chat rooms, where employees can record comments anonymously.

"FDA has said if you pay for the ad or pay somebody who is responsible for the ad, you are responsible for the ad," Senger said. "But what if it is a chat room? What if you pay for the chat room but don't pay anybody who posts on it? The medium must be dealt with and FDA is starting to do so."

The Council of Better Business Bureaus’ Electronic Retailing Self Regulation Program addressed some salient issues in social media marketing with an investigation into online tooth-whitening claims released in September 2009 (Also see "ERSP Look At Tooth Whitening Claims Finds Marketing Disguised As Reviews" - HBW Insight, 21 Sep, 2009.).

The U.K.’s Advertising Standards Authority announced last year that it would extend its watch to marketing messages on companies’ social media pages starting in March 2011 (Also see "U.K. Advertising Watchdog Will Monitor Facebook & Twitter Ads Next Year" - HBW Insight, 6 Sep, 2010.).

FDA's proposed guidance for use of social media has been under discussion since 2009 or before. In early 2010, the agency solicited feedback from industry about best practices for marketing and promotion using social media such as Facebook, Twitter and YouTube (Also see "FDA Officials Offer Pointers For Navigating Social Media Pitfalls" - Pink Sheet, 24 May, 2010.).

By Mark Hollmer