Transcript Slide 1

HOT TOPICS IN SOCIAL MEDIA
July 9, 2014
Rend Al-Mondhiry
Regulatory Counsel
Council for Responsible Nutrition
Washington, DC
Council for Responsible Nutrition
The Council for Responsible
Nutrition (CRN) is a not-for-profit
trade association representing
the interests of the dietary
supplement and nutritional
products industry
CRN represents more than 100
companies that manufacture
dietary ingredients, dietary
supplements, and/or functional
foods, or supply services to
those suppliers and
manufacturers
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Some of Our Members:
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CRN’s Mission:
. . . to sustain and enhance a climate for
our member companies to responsibly
develop, manufacture and market dietary
supplements and nutritional ingredients.
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Regulation of Social Media
 FDA
 FTC
 Self-Regulation
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FDA Regulation
FDA defines “labeling” broadly
– “…all labels and other written, printed, or graphic matters” on or
accompanying an article - FD&CA § 201(m)
– “Intended use” also defined broadly
Determined by the information the manufacturer provides on product
labeling or accompanying materials
Website content is considered an extension of labeling;
includes sponsored social media sites
– Who is responsible for consumer-generated content - posts,
pins, tweets, etc.?
– Potential regulatory and legal implications
Adverse event reports (AERs), testimonials/claims
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FDA Regulation
In June 2014, FDA released two draft
guidance documents for industry on
social media and internet
communications about prescription
drugs and medical devices
– Best practices regarding character space limitations
and correcting third-party misinformation
No similar guidance for dietary supplements, but
instructive
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FTC Regulation
FTC and FDA share jurisdiction over claims
made by food and supplement manufacturers
– Two agencies work closely together
All forms of media are subject to the FTC Act
prohibitions against deceptive acts and
practices
– FTC Guidance documents for marketers
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.com Disclosures:
How to Make
Effective
Disclosures in
Digital Advertising
(2013)
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Self-Regulation
National Advertising Division (NAD), investigative
and judicial unit of the advertising self-regulatory
system administered by the Council of Better
Business Bureaus
– CRN/NAD Advertising
Review Initiative targets
deceptive or misleading
dietary supplement advertising
NAD will refer an advertiser to the appropriate
regulatory agency (i.e., FTC) if the advertiser
refuses to participate or adhere to NAD’s findings
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Self-Regulation
Found that “pinned” content is testimonial
in nature and therefore required disclosure
of typical results (Nutrisystem, Case #5479)
Claims at issue in NAD’s
review included:
• “Christine B. lost
46lbs on Nutrisystem.”
• “Michael H. lost 125
lbs. on Nutrisystem.”
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Thank you!
Rend Al-Mondhiry
[email protected]
(202) 204-7672
Council for Responsible Nutrition
Hot Topics in Social Media
Kelley Drye & Warren, LLP
Katie Bond, Marketing and Advertising Practice Group
Megan Olsen, Marketing and Advertising Practice Group
July 9, 2014
FDA on Social Media
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FDA on User Generated Content
I love Wellness Multivitamin! Not only does it help me stay healthy, it’s also ALLNATURAL!!
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FDA on User Generated Content
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FDA on User Generated Content
 If UGC posted on a company site is truly independent, the
company is not liable for it (probably)
 A company can be held liable if it endorses, highlights, or
actively solicits non-compliant comments
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FDA Guidance Document
 If a platform cannot
accommodate all necessary
disclosures for a claim, the
platform should not be used
• S/F Qualifiers (e.g.,
“occasional sleeplessness”)
• S/F claim (DSHEA)
disclosures
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FTC on Social Media
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FTC Endorsement and Testimonial Guides
How does the FTC define an endorsement?
16 C.F.R. § 255.0
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FTC Endorsement and Testimonial Guides
Material Connection Disclosures
16 C.F.R. § 255.5
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FTC Endorsement and Testimonial Guides
What can create a material connection?
 Compensation
 Free and/or discounted products
 Trips
 Promises to appear in advertisements
 Employment
 Contests
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FTC Endorsement and Testimonial Guides
Material Connection Disclosures
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FTC Endorsement and Testimonial Guides
 Generally Expected Results Disclosures
 Example: Average weight loss 10 pounds in 3 months
 Unsubstantiated Claims
 Companies must be able to substantiate all claims made by endorsers
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FTC Disclosure Guidance
Updated March 2013
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FTC Disclosure Guidance
Ineffective Disclosures (according to FTC guidance)
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FTC
Disclosure Guidance
Ineffective Disclosures
(according to FTC guidance)
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FTC Disclosure Guidance
Most Effective Disclosure (according to FTC guidance)
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Reducing Risk
 Written Social Media Policy
 Endorser Contracts
 Training
 Monitoring
 Corrective Action
Documentation of Social Media Practices
is Key
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Examples
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Examples
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Examples
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Training, Monitoring, Documentation
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Material Connections Disclosures

Facebook
X Hyperlinks
X “About” Section
 “I am an Age Less Spokesperson”
(appears in every post about the
product)
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Twitter
X Hyperlinks
X Spon
 Ad
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GER Disclosures
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Proposed Claim: “Age Less helped me lower my cholesterol to 180.”

Example Social Media Post
 Twitter – “Ad: Age Less helps me maintain my cholesterol at 180.
Average cholesterol maintenance: 190 over 6 months for individuals
already in the normal range.***”
 ***Need to consider DSHEA disclosure
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CDA, Unsubstantiated Claims
Age Less prevented me from getting any colds during my 3month tour of Finland!!
#nocolds #healthyallwinter #awesome!!!
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Contest
Proposed Age Less Rockstar Contest
 To enter contest consumers must post pictures of the Age Less product to
social media sites with comments regarding how Age Less helps them feel
like a rockstar
 Winner receives a $1,000 and a meet-and-greet with Ozzy Osbourne
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Questions?
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Thank You
Katie Bond
[email protected]
202-342-8433
Megan Olsen
[email protected]
202-342-8677