Natural Products Insider

SEP-OCT 2018

INSIDER is the leading information source for marketers, manufacturers and formulators of dietary supplements, healthy foods and cosmeceuticals. Since 1997, INSIDER has been serving the needs of the global nutrition industry.

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62 INSIDER September/October 2018 "Be more social!" Twenty-fi ve years ago, this was something many parents said to try to get their kids up and out of the house. Now, it likely means get more active on one or more of the seemingly ubiquitous internet social media platforms like Twitter, Facebook, Instagram or Snapchat. And as the world-at-large gets more "social," companies understand they must get social as well to connect with their target audiences. The regulations that apply to point-of- sale (POS), print and other traditional advertising apply equally to online advertising. And lately, FDA and FTC have stepped up enforcement of certain advertising practices used by companies on social media. Federal Regulation Two main federal agencies monitor how companies promote their food, beverage, dietary supplement and cosmetics products—FDA and FTC. (In addition, USDA regulates products with more than minimal amounts of meat, poultry and eggs). FDA is charged with enforcing the Federal Food, Drug and Cosmetic Act (FD&C), as well as the numerous regulations issued by the agency to further implement the provisions of the FD&C, including regulations pertaining to the labeling of products. FTC regulates advertising and is responsible for ensuring all advertising for any products, including food, beverages and supplements, is 1 truthful and not misleading; 2 not unfair; and 3 properly substantiated. Since many forms of promotion, including online claims, may be considered both labeling and advertising, it is likely both FDA and FTC will be viewing internet claims to ensure consumers are protected. FDA Review In its regulation of food, beverage and supplement products, one of FDA's governing mantras is nondrug products may not be marketed or sold with the intent to diagnose, treat, cure or prevent any disease. FDA has long taken the position it may review any information disseminated about a product in determining what the true "intent" of a company is to sell a particular product. FDA has, with increased frequency, cited claims on company Facebook pages (in a 2016 warning letter to CellOxess LCC, for example), Twitter pages, Instagram accounts and even LinkedIn pages (in a 2017 warning letter to Amazing Sour Sop Inc., for example) as evidence products are intended for use as drugs. FTC Review While FTC has continually refi ned its scrutiny of online advertising over the last several years, an increased focus on social media advertising was evident in 2017, specifi cally in the area of product endorsements and testimonials. FTC announced several enforcement actions related to companies in the social media space, as well as an update to FTC's guidance on endorsements. Fundamentally, all endorsements must be truthful and not misleading. Additionally, all material connections between an endorser and a company must be disclosed so a person can properly evaluate the endorsement. The proper disclosure of material connections can be a sometimes-diffi cult task, especially on social media platforms with limited space. In 2017, FTC focused on the role of infl uencers in social media advertising. Infl uencers are typically people with large followings on social media (celebrities, reality stars, bloggers, athletes, etc.), who are paid by companies to promote or recommend products on social media. Due to FTC's concern over a perceived failure by many infl uencers to adequately disclose material connections between the infl uencers and the companies paying them to promote products, the agency delivered more than 90 letters to infl uencers and marketers, reminding them of their obligations to clearly and conspicuously disclose the connections. In those letters, FTC reminded infl uencers disclosures should be unambiguous, easily spotted, and not buried in a string of hashtags or other information. Not everyone got the message from FTC's fi rst round of letters; in September 2017, FTC sent 21 follow-up letters, citing specifi c posts on various social media platforms the agency perceived as not being in compliance with its Endorsement Guides. Instead of the subtle reminders to infl uencers in the fi rst batch of letters, the September letters contained specifi c requests to recipients to describe how they would achieve compliance. Finishing Up With the increased avenues social media platforms provide for companies to reach consumers, there is also an increased need for companies to be aware of FDA and FTC regulation compliance. Making permissible claims and disclosing material connections are just two of the areas in which companies must be well-versed to avoid unwanted action from regulators and other fronts. Justin J. Prochnow is an attorney and shareholder in the Denver offi ce of the international law fi rm of Greenberg Traurig LLP ( He can be reached at (303)572-6562 or Follow Justin Prochnow on Twitter at @LawguyJP. This article is issued for informational purposes only and is not intended to be construed or used as general legal advice. The opinions expressed are those of the author exclusively. Getting Social: Compliant Marketing via Social Media by Justin J. Prochnow Influencers Social Media Marketing at SupplySide West Find out more about advertising on favorite social media sites from Justin Prochnow during the "Marketing Effectively & Legally via Social Media" Panel Discussion on Thursday, Nov. 8, 2-4 p.m. at SupplySide West in Las Vegas. Scan Here

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