The FDA Regulates Facebook 'Likes'
The FDA is expanding its regulation of the Internet, specifically targeting companies’ use of Facebook. The organization has taken action against a dietary supplement maker for ‘liking’ an unapproved claim regarding one of its products.
The FDA issued a letter of warning to the company in question, and also highlighted unsupported testimonials posted on its website, suggesting that the FDA is ramping up its regulatory efforts on the Internet.
The FDA has been asked to issue explicit guidance on how it intends to regulate Internet advertising (and social media in particular). However, to date, the agency has resisted. “It seems that FDA’s policy on Internet promotion is going to unfold in the same manner that the agency has traditionally laid out its regulatory policy over advertising and marketing — piecemeal, one warning letter at a time,” says Scott Gottlieb writing for Forbes.
The FDA has historically been reluctant to publish clear guidance when it comes to how it regulates promotion of products. The agency worries that writing down its policies on paper could invite legal challenges to its authority over the underlying commercial speech, which courts have often recognized is protected under the First Amendment.
Until now, it was never clear whether FDA would treat a ‘Like’ or a re-tweet as an endorsement of the underlying content. This latest warning letter seems to answer the question. FDA writes, “We also note claims made on your Facebook account. The following are examples of the claims: In a March 10, 2011 post, which was “liked” by “Poly Mva.” That post read: “PolyMVA has done wonders for me. I take it intravenously 2x a week and it has helped me tremendously. It enabled me to keep cancer at bay without the use of chemo and radiation…Thank you AMARC”
Drug makers call for social media promotion guidelines from the FDA
It is now clear that it is FDA’s interpretation that a ‘Like’ implies endorsement could be a precedent-setting action, and many experts are now second guessing that the same policy could be extended to other uses of social media tools, making companies weary of engaging at all.
In an Internet age, experts and drug makers are calling for regulations to be outlined by the FDA, the belief being that decent industry players will abide by the rules.