by Jonathan Gilliam, Momentum Factor
Over the last year, ever-increasing scrutiny and heavy-handed enforcement by regulators has become more and more commonplace. And the outlook for the future echoes more of the same. This poses an almost insurmountable challenge for businesses not investing significant resources in compliance and monitoring.
Adding to this increased regulation are measures being taken by the U.S. Food & Drug Administration (FDA). Like other regulators, such as the Federal Trade Commission (FTC), the FDA is making a point of upping its game. While the FDA has always been an ardent protector of public health through its enforcement policies, they are adapting to new sales techniques by increasing their scrutiny of social media promotion.
As our world has moved online, especially after the events of the pandemic, sales teams have shifted their tactics to social media platforms. While moving to where consumer audiences spend their time is obviously the right move, keeping sales messages and images in compliance on these rapid-pace platforms has proven a challenge for compliance departments. Armed with this knowledge, the FDA is making a concerted effort to police these channels.
To that end, the FDA has amended the Federal Food, Drug and Cosmetic Act in order to cover misleading labeling and advertising on social media. This amendment not only takes into account representation made or suggested in statement, word, design, devise or any combination of these elements, but also considers any failure to reveal facts with respect to consequences from use or as prescribed. The scrutiny also includes all labels displayed in any marketing or advertising whether written, printed or graphic matter. To top things off, a misbranding charge is supported in the FDA’s eyes by anything said, included on a label or even implied in the message. Proof is solely based on the information provided or lack of information disclosed when referring to risks.
Looking at this amendment, it is easy to see that the FDA is using broad strokes when it comes to reviewing social media promotion in order to not only protect the public but enforce compliance by companies across the board. Additionally, the FDA has made it clear that anything outside of its jurisdiction will be referred to other regulatory agencies, including the FTC.
With all of the above in mind, taking compliance lightly for your company and field is no longer just a risk, it’s a certainty to bring about major regulatory consequences. In order to steer clear of fines, compliance departments not only need to have the full attention and support of company leadership but need the proactive monitoring tools necessary to combat misleading income, product and health claims. Without these measures, agencies like the FDA and FTC are ready to impose considerable fines while making an example out of legit businesses in order to dismantle the direct sales channel. That’s why now is the time to prioritize compliance and keep regulators, including the FDA, at bay.