In a warning letter to AMARC Enterprises (which you can read here), the FDA says a testamonial posted by a consumer on its Facebook page claiming that its PolyMVA dietary supplement “enabled me to keep cancer at bay without the use of chemo and radiation” - was ‘liked’ by the company.
As the posting amounted to an unauthorised drug-claim and AMARC had effectively 'endorsed' it by 'liking' it on its Facebook page, the FDA included this as one of several examples of the company promoting PolyMVA “for conditions that cause the product to be a drug” rather than a dietary supplement.
FDA also disapproved of AMARC putting a link on its Facebook page to a blog article by a third party entitled, ‘Children with Cancer Often Use Alternative Approaches’.
In a second warning letter sent to M.D.R. Fitness Corp (which you can read here), the FDA noted that typing diseases such as ‘cancer’ or ‘diabetes’ into the search box on its website brought up product lists of dietary supplements.
Because those products are as a result 'associated' with cancer and diabetes in consumers' minds, M.D.R. is "implying that its products are intended for use in the diagnosis, cure, mitigation, treatment or prevention of such diseases," argued the FDA.
Bethany Kennedy: ‘FDA is willing to interpret ‘liking’ or even sharing or retweeting a comment as endorsement of that comment’
The letters showed that sharing or ‘liking’ unauthorized claims from third parties, or even forming an association in consumers’ minds between a disease and a dietary supplement - however indirectly (eg. via search results on your website) - could be construed as making an implied disease claim, Bethany Kennedy, an associate at the law firm Emord & Associates, told NutraIngredients-USA.
The first letter in particular had provoked a lot of debate as it demonstrated that the FDA “interprets ‘liking’ or even possibly sharing or retweeting a comment as endorsement of that comment”, she said.
“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 intended has yet to be seen. As a result… companies will have to expend resources policing consumer comments, possibly unfriending consumers who make diseases claims”.
She added: “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.”
Ivan Wasserman: ‘It appears that FDA's position is by ‘liking’ it the company in a way adopted the claim as its own’
Ivan Wasserman, a Washington DC-based attorney at law firm Manatt, Phelps & Phillips, said this was the first time he had seen the FDA mention ‘liking’ third party claims on Facebook.
“FDA has previously cited companies for claims they made on their Facebook pages, but I believe this is the first time a company was cited for claims posted on Facebook by a third person, and it appears that FDA's position is by "liking" it the company in a way adopted the claim as its own.
He added: “I think that FDA will continue to scrutinize supplement company's social media activities, and companies are well advised to not only understand the rules of the road, but also have the right social media policies and procedures in place.
“While traditional advertising and labeling will typically go through several layers of review before being released, without the right procedures in place a social media post, tweet, or like may be made by someone without any internal review and that can have serious consequences."
ANH-USA: This is a very slippery slope
The Alliance for Natural Health USA said the letters represented a “very slippery slope”, adding: “As any Facebook user realizes, a ‘like’ may simply be a passive acknowledgement of someone’s comment; surely it is a stretch to consider any comment that even mentions cancer to be a disease claim.”
As for the letter referencing search terms, it said: “This goes too far. Certain words will be absolutely forbidden. This is a very slippery slope. Once this line is crossed, how far will the FDA go?”