Healthcare communications and marketing news and information

In the pharmaceutical marketing arena, people have been paying a lot of attention to the lack of Food and Drug Administration guidance on social media marketing.  However, less attention has been directed toward another regulatory body, the Federal Trade Commission (FTC), which is moving quickly to regulate common online marketing activities such as behavioral targeting and social media marketing.  

On April 2, the Financial Times reported that the FTC is planning on updating its regulations regarding “false and misleading advertising” for the social media age. According to the publication:

"Advertisers in the US are bracing themselves for regulatory changes that they fear will curtail their efforts to tap into the fast-growing online social media phenomenon. Revised guidelines on endorsements and testimonials by the Federal Trade Commission, now under review and expected to be adopted, would hold companies liable for untruthful statements made by bloggers and users of social networking sites who receive samples of their products."

Companies as diverse as Microsoft to wine companies regularly provide bloggers with free samples in order to encourage them to review products.  This is a long-standing tradition ported over from traditional media relations practices.  Based on the Financial Times article it appears that the FTC is assuming that by providing bloggers with free sample, companies are controlling what they say about them.

The potential FTC rules would clearly put a damper on a popular blogger relations tactic.  However, there are still questions about whether the regulation would be legal or enforceable.  Would bloggers’ comments about a product be protected by free speech laws?  In addition, how would the FTC prove that a company directed a blogger to say specific things about a product?

Advertising trade groups have come out against the proposed FTC rules.  They are asking FTC to allow the industry to self-regulate.  What’s your take?  Are the proposed FTC rules too draconian?  Will they stand up in court?