Digital & Social Media

(Plat)Form Follows Function For Sponsored Content

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Remember when we got into an elevator and everyone stared at the ceiling? Those days are gone. Rather than looking upwards to avoid the pressures of proximity, today everyone looks down at the palm of their hands. They stare at handheld devices as if all of life’s answers were there. Instead, what they get are emails, social media updates, newspaper articles and Twitter feeds.

Whatever they are doing, they are now engaging not only in communications (distinctly different from staring at the ceiling), they are also interacting with brands. It is but one example of the way that time we used to spend doing other things is now more likely spent interacting with brands – more often and perhaps more intensely. When we go from reading news and emails to reading sponsored content, that interaction often is regulated by a government agency. How closely that interaction is regulated continues to change and vary from sector to sector. It is worth mentioning because the impact and role of social media was subtle enough in the beginning that many government agencies were slow to realize what was going on. Those days are long gone too.

For example, in 2009, the Food and Drug Administration, which regulates the commercial speech of pharmaceutical companies about their products, stated in a podcast on my blog – Eye on FDA – that new regulations were not needed with the emergence of social media. “It is the message, not the medium” was the attitude of the federal agency. However, it quickly became apparent that digital media begged new questions of regulators that went beyond the rules applied to print and broadcast. Soon the agency was holding public meetings and issuing guidance documents. But in spite of that, FDA still struggles in enunciating effective polices about the use of social media by brands when speaking with consumers.

While FDA is one of the largest, it is not the only government agency doing so. The pharmaceutical sector is highly regulated, but so are others, including the financial services sector and the insurance industry, to name a few. And you don’t have to be a specialty industry to be affected. With a mission to prevent practices that are deceptive to consumers, the Federal Trade Commission (FTC) has laid out guidance that applies to all brands everywhere.

What does this mean for communicators associated with these brands? It means this: If you are any brand actively engaged in communicating via social media, there are limits and guardrails that must be heeded. If on top of that you are involved in a highly regulated industry, then you also need to know the guidance that is available from the appropriate regulatory authority.

  • FTC guidance was initially put out in 2010 and provided some insights into how to deal with endorsements for products and other areas related to blogging and testimonials, but recently updated that information, possibly signaling a more defined stance when it comes to enforcement. FTC covers what you need to know about testimonials and endorsements, particularly when you are paying spokespeople. FTC also addresses some of the issues you will face if you are engaging in a sweepstakes or contest. This is stop one for brands.
  • If you make medicines, FDA would be an important stop, though enunciating policy with this agency has been both slow and full of questions. Here is a link to a collection of all the guidance documents and enforcement actions that FDA has put out with respect to social media – from correcting misinformation that is posted by others to considerations for posting within regulatory parameters when there is limited space.
  • If you are in the financial services sector, then you should know that the SEC has issued guidance with respect to how social media use interfaces with the agency’s “testimonial rule” and in addition, guidance from the Financial Industry Regulatory Authority (FINRA) with its guidance on communicating with the public through blogs and social media sites.

Those are just a few of the examples of how the social media speech of brands, particularly those within highly regulated industries, are impacted by parameters being enunciated by regulatory authorities – and that is just inside the U.S. It is not that social media is riskier than traditional forms of communication. But its participatory nature, space limitations and other factors mean that it is different and therefore, it is important for brands – and those who communicate on their behalf – to understand the new environment in which they are operating and the fact that it is still in a state of evolution.

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About the author

Mark Senak

Mark Senak brings more than two decades of experience in communications, law, public health and public affairs. Author of the blog Eye on FDA, he has deep expertise in FDA regulations, including digital communications for the pharma industry. In addition to his extensive background as a lawyer, Senak is an author and frequent speaker.

A FleishmanHillard employee.