Americans’ media consumption habits have changed drastically in recent decades, and the coveted younger set of consumers is no longer reachable with conventional forms of advertising. In response many companies have ramped up their social media presence to engage consumers where they spend their message-consuming hours.
These efforts have borne fruit, as company after company has cited social media as being a key facet of their growth strategies. But the approach has a huge potential pitfall; FDA views messages from consumers hosted on a company’s website as tantamount to an endorsement of that message by the company itself.
“With respect to reaching out and attracting more potential consumers, you do have to monitor that language, you have to be careful of what they are saying about your product,” Brandon Griffin, CEO of Ingredient Indentity told NutraIngredients-USA.
“If it is going to be hosted on a company-owned asset (such as a Facebook page or a Twitter account), it is going to be viewed as marketing,” he said.
Warning letter outlines risk
And the risk extends beyond just company-owned sites. It can be risky to ‘like’ the wrong thing on Facebook, too. A 2012 warning letter to AMARC Enterprises makes this risk clear. In the letter, FDA cited a Facebook posting in which a consumer said the company’s PolyMVA dietary supplement “enabled me to keep cancer at bay without the use of chemo and radiation” - that was ‘liked’ by the company.
The post made a non-compliant disease claim, and the company’s ‘liking’ of it constituted an endorsement of the claim, FDA asserted. The risk extends presumable to reTweeting the wrong post, too.
At the time the letter was sent, Bethany Kennedy, an attorney with the firm Emord and Associates told NutraIngredients-USA that the AMARC letter demonstrated that FDA “interprets ‘liking’ or even possibly sharing or retweeting a comment as endorsement of that comment.
“Whether or not FDA will construe a company’s failure to delete from its wall a testimonial from a consumer that makes disease claims as evidence of intent has yet to be seen. As a result… companies will have to expend resources policing consumer comments, possibly unfriending consumers who make diseases claims”.
“Under its broad intended use doctrine, which FDA uses to categorize a product’s regulatory class, FDA is more than willing to use social media and search terms as a basis for construing evidence of intent to sell supplements as drugs,” she said.
Policing the presence
But it’s not so easy to keep those messages in line. The social media sphere is in constant ferment, and the goal of social media managers is to get maximum engagement, not to look for ways to rein that activity in.
“For companies that have aggressive social media efforts, it can be become overwhelming for in-house people to monitor,” Griffin said. “And even they were making an effort to monitor it, these are marketing people who aren’t saavy about the regulatory questions.”
Ingredient Identity’s new program uses proprietary software to comb through a client’s multiple social media streams such as Twitter, Facebook, YouTube and others, to look for non-compliant language.
“This service was born of a dialogue with a client who was concerned about this risk. With our system, we can find those messages quickly and send a company a notification that says, here is something you should be concerned about,” Griffin said.
Real-time risk
The immediacy of the social media sphere can still be a problem, he said. If a non-compliant message is visible on a company’s website at the time that an FDA employee is perusing the site, even if the company was in the process of removing it it could turn out to be a wrong time-wrong place scenario. But in that case, being able to demonstrate that the company does have a policy of policing messages and a tool to do so could be a valuable bargaining chip with FDA, Griffin said.
“Very rarely does a company get a warning letter on just their claims alone. It’s usually lumped in with other things (such as GMP shortfalls). It is a very positive thing for the client if they can say they have a system in place to resolve this matter,” he said.