FDA, Social Media, and Health Claims

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Social media is a powerful cog in today’s marketing machine. It’s dynamic. It’s personal. It gives consumers a voice. But as valuable as consumer-generated content is, it’s not without risk.

A company, for instance, may diligently follow FDA’s rule that claims to treat or prevent a disease cannot be made for dietary supplements.1 Consumers, however, are not beholden to FDA’s rule.

On a company’s website or social media page, consumers can make statements such as “Product X is helping me steer clear of any colds this winter” or “I’ve overcome my type 2 diabetes with Product X.” Scenarios like these beg the question: When it comes to social media, are companies responsible for the regulatory correctness of consumer-generated content?

FDA recently addressed this question head-on in guidance for drug companies. No similar guidance, however, has been provided for dietary supplement companies, and questions persist.

In January, FDA issued draft guidance providing recommendations to drug companies on submitting online promotional materials.2 Unlike dietary supplement companies, drug companies must submit to FDA their promotional materials—including online promotions—at the time of initial dissemination.3 The new guidance covers which online materials FDA expects drug companies to submit and what FDA believes are best practices for making submissions.

One portion of the guidance, in particular, has raised questions over consumer-generated content. The passage indicates that drug companies need not submit “independent” consumer-generated content.

Specifically, the guidance states that, in FDA’s view, a drug company “is not responsible for UGC [user-generated content] that is truly independent of the firm (i.e., is not produced by, or on behalf of, or prompted by the firm in any particular).” The guidance explains further that “FDA will not ordinarily view UGC on firm-owned or firm-controlled venues such as blogs, message boards, and chat rooms as promotional content on behalf of the firm, as long as the user has no affiliation with the firm and the firm had no influence on the UGC.”

As support for its stance, FDA cites Section 230 of the Communications Decency Act (CDA). Section 230 states that “[n]o provider…of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content provider.”4

Congress originally enacted the CDA to censor online pornographic material. Section 230, however, has been interpreted as providing protection to any company offering an online forum for third-party postings. This protection has been hailed as enabling a level of Internet freedom that is unique to the United States. With the protections of Section 230, companies like Facebook and YouTube can exist without undue liability for their users’ posts. Likewise, companies such as dietary supplement firms that sell consumer goods should be able to allow consumer-generated content, without undue liability. The problem dietary supplement companies face, however, is that neither of the regulators to which they answer has addressed Section 230.

Source: nutritional outlook

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