FDA Social Media Guidance Controversy

FDAUnder the new FDA social media guidance, manufacturers would be responsible for monitoring their social media platforms for comments considered inaccurate, misleading or related to non approved or off label use.

They would also be liable when third party websites they have collaborated with publishes or do not filter articles, posts, ads or comments considered inaccurate, misleading or related to non approved or off label use.

All three major industry trade associations – the Pharmaceutical Research and Manufacturers of America (PhRMA), the Biotechnology Industry Organization (BIO) and the Advanced Medical Technology Association (AdvaMed) warn FDA of significant flaws in the agency’s proposed regulations on the use of social media.

Their contention being that information and comments published online by third party comes under the first amendment and they should not have to monitor, correct or remove them even if they are misleading

The first amendment argument has been widely used to justify misleading information in non regulated industries but in the healthcare industry, misleading information, even by third party can have wide ranging consequences on the health of patients, raise false hope and create undue pressure by ill patients on doctors. Continue reading

Facebook Venturing into Healthcare

Facebook venturing into healthcareFacebook venturing into healthcare was predictable.  Apple, Google are doing it and there is a plethora of niche platform doing it.

Facebook already knows us in more intimate ways than we sometimes know.  They know what we like, who our friends are, they know what we share, they certainly have been following and recording when we share our medical conditions, health concerns and health initiative.

They also follow anything happening on their platform and there is no doubt they have noticed that patients have created a number of communities (private and public support groups based on health conditions, they are also keenly aware that studies have shown that these support communities in and out of Facebook are very active and engaged, in spite of Facebook dubious reputation when it comes to privacy

As Facebook mentioned, most Instagram users do not know Instagram is owned by Facebook and they are hoping their health care ventures will follow a similar path with patients ignoring or being unaware of the link between Facebook and the community.

How do you feel about sharing intimate health information in communities run by Facebook or on a Facebook owned platform?

Continue reading

FTC latest online ad rules

Advertisers should think twice about placing promotional messages on mobile and social media platforms like Twitter if those ads require disclosures or disclaimers to avoid being deceptive or unfair, the U.S. Federal Trade Commission said on Tuesday.

The updated guidelines for online advertising represent the commission’s attempt to catch up to more than a decade of fast-evolving new technology, from the advent of the mobile revolution to an explosion in social media like Facebook and Twitter.

This year, as in the last report issued in 2000, the FTC holds online advertisers to the same standards of honesty and full disclosure as newspapers and television.

But the limited space available on mobile platforms maintained by Twitter, Facebook and others means that it is difficult to place appropriate disclosures close enough to the ad, or prominently enough, to ensure users see it.

“Advertisers should make sure their disclosures are clear and conspicuous on all devices and platforms that consumers may use to view their ads,” the FTC’s Lesley Fair said in a blog post accompanying the 53-page report.

“That means that if an ad would be deceptive or unfair (or would otherwise violate an FTC rule) without a disclosure — but the disclosure can’t be made clearly and conspicuously on a particular device or platform — then that ad shouldn’t run on that device or platform,” Fair wrote.

And the FTC discouraged the use of pop-ups for disclosures since they are so often blocked.

“Most webpages viewable on desktop devices may also be viewable on smartphones,” the FTC said in the report. “Advertisers should design the website so that any necessary disclosures are clear and conspicuous, regardless of the device on which they are displayed.”

Twitter already requires celebrities and others who endorse products to disclose that they are being paid. Facebook had no immediate comment.

“Many of the themes about social media were already surfaced (by the FTC) a few years ago,” said Eric Goldman, Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law.

He said the FTC’s guidelines placed the burden more on advertisers and users who take payments, than on platform companies such as Twitter or Facebook. “I don’t see anything that specifically tells Twitter, Facebook or other platforms how they have to design their platform.”

“The guidelines don’t have the force of law. but the FTC is trying to let industry know what it expects industry to do, and when the industry doesn’t do what the FTC wants, the FTC tends to get cranky.”

Original article

AMA Social Media Policy

Professionalism in the Use of Social Media

The Internet and social media in particular, have created the ability for medical students and physicians to communicate and share information quickly and to reach millions of people easily. Participating in social media, social networking and other similar Internet opportunities can support physicians’ personal expression, enable individual physicians to have a professional presence online, foster collegiality and camaraderie within the profession, provide opportunity to widely disseminate public health messages and other health communication. Social media, blogs, and other forms of communication online also create new challenges to the patient-physician relationship. Physicians should weigh a number of considerations when maintaining a presence online:

(a) Physicians should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online, and must refrain from posting identifiable patient information online.

(b) When using the Internet for social networking, physicians should use privacy settings to safeguard personal information and content to the extent possible, but should realize that privacy settings are not absolute and that once on the Internet, content is likely there permanently. Thus, physicians should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and, to the extent possible, content posted about them by others, is accurate and appropriate.

(c) If they interact with patients on the Internet, physicians must maintain appropriate boundaries of the patient-physician relationship in accordance with professional ethical guidelines just, as they would in any other context.

(d) To maintain appropriate professional boundaries physicians should consider separating personal and professional content online.

(e) When physicians see content posted by colleagues that appears unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions. If the behavior significantly violates professional norms and the individual does not take appropriate action to resolve the situation, the physician should report the matter to appropriate authorities.

(f) Physicians must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, may have consequences for their medical careers (particularly for physicians-in-training and medical students), and can undermine public trust in the medical profession.

Click here for source article

 

Social Media Marketers Must Provide Disclosure

Advertisers who make claims about their products on social media sites like Twitter, Facebook and Pinterest need to be mindful of the fine print they use, or forget to use, in their postings and provide disclosure.

Last week, the National Advertising Division, an investigative unit of the Advertising Self-Regulatory Council, reviewed photographs that Nutrisystem had “pinned” on Pinterest boards and determined that the photos were testimonials requiring disclosures. The photographs in question showed people who said they had lost weight by using Nutrisystem, but there was no disclosure that the people had been paid or that the results of their weight loss were not typical. Instead, the photos simply said, for example, “Christine B. lost 46 lbs on Nutrisystem.”

The self-regulatory council conducts independent reviews of marketing and advertising on all platforms, including social media. The group often responds to complaints brought by competing marketers who accuse others of violating advertising guidelines, like making unsubstantiated claims. Following a review, marketers often comply with requests to modify or settle the claim. If they refuse, the claim can be sent to the Federal Trade Commission for further review.

Andrea Levine, the director of the National Advertising Division, said the organization tends to monitor advertising in categories like health and nutrition, dietary supplements and cosmetics closely. “Those are categories where companies are not watching each other as closely and bringing their own challenges,” Ms. Levine said.

In the Nutrisystem case, the company immediately agreed to add disclosure statements to its photographs, Ms. Levine said. “As long as their stories are truthful and as long as the advertiser discloses what is the normal weight loss range, which is 1 to 2 pounds a week, that lets the consumers put the success story in context,” Ms. Levine said.

Advertising on Twitter and Facebook is also monitored closely by the investigative units in the Advertising Self-Regulatory Council. In November 2011, for example, 1-800 Contacts challenged claims made on Facebook by a competitor, Coastal Contacts.

Coastal Contacts encouraged Facebook users to “like” its page and in doing so, promised them a free pair of glasses. It also promised discounts of 70 percent on contact lenses. The rival, 1-800 Contacts, said that Coastal Contacts did not disclose the shipping and handling fees associated with the offer for free glasses and that not all styles of glasses or lenses were available in the offer.

In addition, the company contended that users who “liked” the Coastal Contacts page in order to get the free glasses were inadvertently endorsing the company.

The National Advertising Division ruled that all claims for free merchandise must clearly disclose any hidden fees and conditions at the outset of the offer, including increasing the font size of the message that “conditions apply.” Facebook likes can be interpreted as “conveying a message of general social endorsement,” the ruling said.

“If what you are offering them in exchange for likes is not real, then those likes were obtained through deceptive advertising,” Ms. Levine said of the ruling.

One of the first social media cases taken up by a related organization, the Electronic Retailing Self-Regulation Program, involved Twitter. In July 2010, the program recommended that Liquid HCG Diet discontinue using testimonials that it made on Twitter — such as, “Becky and husband lost 14 lbs in 2 days!” — and claims on Facebook that said “Lose around a pound a day” and “Lose 30 lbs in a month, it’s easy and quick!”

Twitter now offers advertisers options like promoted tweets that make it more clear to users which posts are advertisements and which are authentic content.

“It’s kind of a reminder to advertisers that even though the medium changes the rules stay the same,” Ms, Levine said.

Full article

10 Things To Know About Liability In The Social Media World

With the explosion of websites like Facebook, Twitter and LinkedIn, in-house counsel should give careful consideration to the unique problems social media presents, how it affects the workplace, and how to address employees’ and third parties’ social media usage.

As with the rise of the Internet and blogs, existing employee and intellectual property issues play out in the social media world in sometimes surprising ways, creating new challenges and problems for in-house counsel. Social media has the capability to dramatically increase these problems and challenges by providing a much larger, well-connected audience. The following are some specific, brief considerations that in-house counsel should analyze and address with company employees.

1. Secrets are gone in a flash (or click).
2. Employee posts in social media may be protected speech
.
3. Employee posts may subject the company to liability.
4. Employee posts may prompt federal administrative action.
5. Social media provides an exponentially bigger, real-time audience for traditional employee-relations problems.
6. Using social media as a recruiting tool can backfire.
7. Registering user names is a cost-effective, protective measure.
8. Implementing social media policies is becoming a best practice
9. The best defense is a good offense
.
10. Social media adds litigation considerations.

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Social Media, Ethics, Disclosures and FTC

Andy Sernovitz, shares his recommendations on how to stay safe and ethical in social media covering the latest FTC updates, the fundamentals of proper disclosure, and how to make sure your agencies and vendors comply with your standards.

Disclosure Best Practices Toolkit (PDF)