You Can’t Touch This

Pharmaceutical Companies and FDA Lack Understanding About What Content in Social Media is Controlled and Untouchable

A funny thing happened on the way to a recent pharmaceutical copy-clearance meeting. I happened to catch a “homepage takeover” advertisement on YouTube that addressed “flu and cooties.” It disclaimed, “MedImmune has no control over the video content on the YouTube homepage.”

Really? Could a typical visitor to YouTube or the FDA assume that MedImmune’s ad buy included complete control of all content appearing on the homepage of the world’s largest online-video website?

That remedial explanation, to me, was akin a Gardasil television commercial that disclaimed the manufacturer wasn’t responsible for the show’s plot: “Merck is not liable for any jokes in this week’s Modern Family.” I was as perplexed by the disclaimer as one might be by a Reader’s Digest GERD ad that clarified that “Pfizer cannot be liable for the issue’s “Laughter is the Best Medicine.’” I would expect Pfizer to influence the editorial no more than I would expect to actually laugh at the column.

Moments later, however, I found myself educating my client’s regulatory and legal team about the new boundaries on Facebook, and I realized we face a fundamental challenge about social media that goes far beyond most of the “red herring” excuses. A fairly simple but nuanced issue is confounding the pharmaceutical industry – and it goes beyond common social-media and Web 2.0 concerns:

  • If we advertise there, are we expected to monitor all adverse events?
  • How do we guarantee one-click access to safety information when our ad might be subject to character limits drafted by a San Bruno software writer?
  • When can our promotion (in the form of ads or syndicated content) co-exist with consumer-generated content?

The control issue is endemic to the historic online-marketing dance among marketers, legal and the FDA. We consume horrific amounts of time and effort on a simple but profoundly important struggle: even a slight variance about the understanding of what terrain in social media is controlled by the advertiser and not.

A decade ago, manufacturers avoided the Internet because it was “the Wild West,” and avoided the power of search-engine optimization because it was overwhelmingly complex. For many sick Americans, a product that does not exist on Google simply does not exist. The same may well be true for those searching the second-largest search engine: YouTube.

By way of example, let’s try an eye-chart exam to explore the “can’t touch this” boundaries on Google – something we’ve had a decade to learn. Look at the image (above) and describe what is “organic” and subject to the unpredictable “learned intermediary” we call Google. Can you circle the controlled advertising units purchased by a corporation? Most likely you’re familiar with the distinction between the “natural” results in the middle column, and are aware that the right column (and often the top of the middle) contains a list of advertisements.

Manufacturers have some but little control over what appears in the “natural” search results of Google, and the algorithm is constantly changing. While some pharmaceutical companies are treating their website metadata like an ad, most are aware that it’s nearly impossible to produce a “fair balanced” search result. Google cuts what it likes, and its scissors run across a website in an ever-changing line.

Of course FDA letters have demonstrated that pharmaceutical firms pay-per-clicks ads are being watched closely. In fact Google has made atypical concessions to manufacturers, allowing “masked” URLs and even special treatment for ads that can include direct links to product inserts.

If you were new to Google, you might well argue that Google does not make it clear enough that the right column includes advertisements – what ever happened to the color cues (yellow background for ads)? A nervous regulatory or legal stakeholder could be forgiven for expressing concern about the lack of clarity between the advertisement and whatever happens to appear in its proximity.

If it took a decade for us to become even marginally comfortable with that distinction on Google, imagine now a series of new websites where the boundaries are even less clear. Copy-clearance teams are struggling because they don’t know what they don’t know. While a regular user of YouTube fully understands that the pre-roll ad is separate from the video, my mother and some attorneys simply don’t. I may know that “promoted videos” and “related videos” are independent assets even if they are triggered by the same user query. But does the regulatory attorney know that promoted videos can’t control the adjacent content anymore than a Crestor ad can be held accountable for what subject is debated on The View?

I had a hearty chuckle that some poor marketer faced a legal team that felt compelled to explain to the FDA and audiences that they don’t influence or control the other videos on YouTube’s homepage or beyond. To me it would be worrying about getting an FDA letter for a 30-second ad during a football game where one of the players was using the product off label.

But the confusion is really no laughing matter. It results in unfortunate “deer in headlights” approach to social media, or some disclaimers that are awkward or insulting. Even if the FDA issued today its long awaited social-media guidance, it clearly will not draw definitive lines around the architecture of Facebook, for instance. Facebook is in a state of constant evolution, and the boundaries between your wall post and surrounding ads will most certainly change.

What won’t change about social media or the Internet is the ever-volatile distinction and adjacency of ads and editorial or consumer-generated content. The two will need to co-exist, but with integrity on most credible digital properties. So manufacturers need to understand where the lines are drawn, or miss the opportunities to promote in better, more efficient and targeted ways.

It’s often easy and helpful to find an offline “analog” to a digital ad:

  • Banners are like retail-store “shelf shouters.”
  • Sponsored “advertorials” will be reviewed as if they were branded or unbranded newsletters published by a manufacturer.
  • Reminder ads that are targeted to a disease state will be a problem.

We know from the FDA social-media hearings and some minor flubs in recent FDA letters that the agency is even less familiar with emerging media as pharmaceutical firms. Yet it’s unlikely that the FDA would hold a manufacturer responsible for coincidental proximity – since it would be a public confession that a government agency fails to know the boundaries between advertising and everything else.

Fortunately most web properties – from WebMD to Facebook and YouTube – are making reasonable accommodations to pharmaceutical marketers to provide an “advertising safe” solution – even though often at a high price. Now it’s our challenge to distinguish between what we can expect to control (and as a result, for what we will be accountable). Likewise we need to either avoid the medium or gain some comfort with the fact that our ads, just like in every other medium, will surround content we “can’t touch.”

Ultimately I believe that well-intentioned Rx marketers will be given the benefit of doubt as long as they don’t “game” the new medium to evade the basic spirit and intent of laws governing on and offline promotion.

Kevin H. Nalty is a former product director at Merck and an innovation leader at Johnson & Johnson. He is the only career marketer who doubles as one of YouTube’s most-viewed personalities, and the author of the recently published, “Beyond Viral” (Wiley).

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