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FTC Issues New Social Media Marketing Guidelines

VP Strategy

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A vital strand of our DNA as pharma marketers is ensuring all communications are fully compliant with FDA guidelines. As such, we must de facto be experts in all guidance, and incessantly monitor the agency’s policy updates. Staying within the indication, maintaining fair balance, reporting adverse events remain top of mind, and the bedrock of our expertise.

But when was the last time you heard FTC requirements discussed during an MLR session or brand planning session? Well, the time has come to start, especially regarding sponsored endorsements from healthcare professionals, patients, celebrities, and even company employees and their families. So much for less regulation, especially in social media!

Back in October 2009 the FTC published Endorsement Guides designed to help maintain truth-in-advertising within the exponentially expanding and increasing powerful social channel. Citing specific examples, the policy defined and set to enforce full disclosure of all material relationships between brands and their sponsored endorsers on social media.

Since then the FTC has sent a few warning letters (yes, they send them, too, and non-pharma brands are equally frazzled upon receipt), including one to Cole Haan regarding a contest on Pinterest where users pinned product photos to win a shopping spree, but the company failed to disclose themselves. Undisclosed tweets for another campaign were also dinged.

What You Need to Know: Latest Guidance Updates

For the first time since issuing those Endorsement Guides, last month the FTC updated their “What People Are Asking” FAQ, making the agency’s expectations (and presumably their enforcement) even more specific. The intent is better defining what’s meant by “clear and conspicuous” disclosure, becomes effective December 1, and generally covers:

Video Testimonials

Having challenges with fair balance on video? Guess what, the modality just got even more difficult because in addition to ISI you’ll need to clearly and conspicuously disclose the pharma or device company endorsement, too. And not just at the beginning, but repeatedly throughout the course of the video, leaving no doubt as to the material relationship.

Social Posts, Including Twitter

Space limits are no excuse for not disclosing all material relationships between sponsors and sponsored posts. The seminal FTC policy goes back to 2013 and its .Com Disclosures documentation, but is now cited through specific examples in the revised FAQ. Tweeting “sponsored” is best, but using #ad might work, no hard rules yet set.

Facebook “Likes” and Similar Social Cues

As already covered in the Klick Wire, the FTC now considers a “like” and similar social media features as endorsements. Although the highly contentious Facebook “like gating” feature has since been eliminated, the overall practice of incentivizing likes and other demonstrably measurable brand-boosters are now squarely within the agency’s cross-hairs.

Blogger Influencers

The much-anticipated FDA draft guidance for social media was issued in January 2014 and addressed blogger relationships and reporting. New FTC guidance specifically regarding disclosure essentially equates payment with accountability: If the company compensates bloggers in any material way, then that material relationship must be overtly conveyed.

Contests or Games

The onus is now on the sponsoring company to ensure people entering a contest or promotion on social media make a disclosure. Adding an explicit hashtag such as “contest” could work, but anything ambiguous such as the name of the campaign won’t suffice. As a best practice when in doubt, disclose; and when disclosing, do it overtly and frequently.

Definitions and Clarifications

The foundation of “truth-in-advertising” is transparency, in the case of endorsement demanding “clear and conspicuous” disclosure of any material relationship between the sponsoring company and its endorsers. Potential ambiguities in the guidance arise from ambiguities in the definition of these terms, so let’s try to understand what the FTC means.

An “endorser” is any person, group, or institution who shares their experience or opinion of a product or service. A “material relationship” essentially means the company responsible for that product or service is in some way directly “compensating” the endorser. “Compensation” can be in the form of money, but it can also translate to free product or other benefits.

So the updated FTC Endorsement Guides clarifies that an “endorser” is anyone falling under this definition, including company employees and their families, and any commenters or influencers with a material relationship with the brand. The guides go further and insist that endorsers must also demonstrate familiarity with the product or services endorsed.

Consequently, any Key Opinion Leader or Expert Endorser must demonstrate direct and relevant expertise with the brand. “Celebrity” spokespeople need not overtly disclose their material relationship in a paid ad, but must do so in a blog, tweet, or other social channel.  Bottom line: Any connection between endorser and brand must be obvious and relevant.

Implications for Healthcare Marketing

If you’ve been worried and a confused about recent FDA guidance for social media, well your world just got even more complex with the newly updated Endorsement Guides from the FTC. Suffice to say here are the key takeaways and things you need to know and do whenever you compensate or directly influence endorsers to help to promote your brand:

Disclose more frequently, more overtly, and for more endorsers

Creating an HCP, patient, or caregiver testimonial video? Fair balance challenging enough? Now you also need to fully disclose the material relationship between your brand and any of these endorsers at the very beginning of the video, sporadically throughout the video, and at the end. Exact frequency is undefined, but the connection must be overt and obvious.

Are any of your endorsers tweeting, posting on Facebook, commenting on a YouTube video, or providing any user-generated content on social media on your behalf? Well they must clearly and conspicuously disclose that relationship with your brand. Using the words “sponsored” or “#ad” or “paid” would suffice; more creative solutions would be optimal.

Are you running a blogger influencer campaign? Make sure your compensated endorsers frequently and overtly remind their audiences of the material relationship with your brand. If you are simply sharing an infographic or other content that bloggers volunteer to re-share, a good best practice is to reveal they got the information from you. Err on the side of caution.

Are you sponsoring a contest? Not only must your promotion be disclosed, but whenever anyone participates with a chance to win or benefit they must disclose its nature as a #contest or #sponsoredevent or similar. As a general rule, if you’re incentivizing participation then that connection back to your brand must be shared by all participants.

Expand your definition of “endorser”

Are you allowing or encouraging company employees and their families to endorse your brand on social media? Ensure they fully and frequently disclose their relationship with your company whenever doing so. Using celebrities? Make sure they reveal their paid connection whenever they post (or you repost them) anywhere outside the overtly paid, owned space.

Justify your choice of “expert endorser”

Are you using a KOL or HCP expert to endorse your brand? That medical expert must have demonstrated prior proven experience with your brand or disease state. They must similarly frequently and obviously reveal the relevance and material relationship with your brand. Patient advocates should be similarly relevant, connected to community, and overt.

Whenever in doubt, disclose

Just as the primary job of the FDA is to protect patients, the end-goal of the FTC is to protect consumers. That puts the burden on us as pharma and device marketers to remain fully compliant to guidance from both agencies. But due to the constantly shifting communications landscape, putting these guides into practice remain unclear.

As a general best practice answer the question: “Are all material relationships between my brand and its relevant social media endorsers overtly and frequently shared with our audiences?” What the FTC wants to know is if you’ve done everything you can to ensure your audiences can differentiate between unsolicited and solicited opinions about your brand.

Decision Tree

1. Are we compensating or directly influencing this endorser?

2. Is the endorser an expert with direct experience with our brand or disease state?

3. Is the celebrity endorser appearing within a paid ad?

4. Are you unsure about any of the above?

Since these changes formally come into effect December 1st, 2015, now is the time to better understand them, and begin to put their recommendations into effect. Much like social media guidance from the FDA, these FTC guides are clear in principle, but remain works-in-progress far as implementation go. Partner with experts to help you every step of the way.

Have any questions or concerns? Klick is eager to continue the conversation, and partner with the industry’s top digital health leaders and communicators to help protect their brand while expanding reach and engagement in the social sphere. Follow @SpitzStrategy and the Klick blog for the very latest news and updates.

More About the Author

Michael Spitz

A digital health expert since before digital health was cool, Spitz has since developed omnichannel campaigns for top pharma and device brands, and helps drive agency innovation, digital transformation, and emerging channels. See him present at conferences, read his blogs, and follow him for the latest trends and opinions on Twitter @SpitzStrategy.

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