Are Pharmaceutical Companies Responsible For Third-Party Social Media Content? Perhaps Not
This week, the New York Times and other outlets reported that Bayer has taken the rare step of producing and distributing corrective advertising for its Yaz brand name birth control medication. Yaz is indicated for the prevention of pregnancy, management of moderate acne and premenstrual dysphoric disorder. Bayer produced an advertisement that the FDA requested be removed because viewers could interpret it to mean that Yaz helps women remedy a larger array of acne symptoms and can help treat PMS.
The Times reported that the FDA and a group of states attorney generals forced Bayer to spend $20 million to air a series of commercials correcting the record and stating that the company’s previous advertisements were “unclear.”
John Mack who writes the Pharma Marketing Blog wondered if Bayer “shouldn’t use its power” to ask an actress (Desiree Hall) who appeared in the TV commercials to remove the advertisement from YouTube. It is worth mentioning that Hall has also published a number of her other commercials on YouTube, indicating that she is using the Website for self-promotion.
Based on my understanding of FDA regulations, unless Hall was acting as an agent of Bayer when she posted the commercials, the drug firm has no responsibility or obligation to ask her to remove the spot. Although Bayer employed Hall, the company does not have direct or indirect control over the content Hall chooses to upload to YouTube. Of course the situation would be a little bit different if Bayer (or one of its agencies) had uploaded the video to to the video sharing Website.
In the end, it all comes back to control. If a drug firm is responsible for the social media content, then the relevant marketing regulations apply.
February 13th, 2009 at 9:36 am
Fard,
I’m not sure I agree. Once informed by DDMAC to immediately cease dissemination of violative promotional materials for YAZ, Bayer has an obligation of making good faith efforts to remove offending content. It’s just common sense to mitigate your damages. Easily done too… actress Desiree Hall is most likely in violation of her commercial product contract with Bayer’s agency which limits use of work product in which she appears, as well as ASCAP / BMI which enforces music royalties.
February 13th, 2009 at 2:50 pm
Mark:
Thanks for your comment. It’s an interesting case. I guess it all comes down to how risk-adverse you are. I understand how a case could be made about Hall, however, what about other third-party content? There are lots of videos out there uploaded by many folks (including parodies of the original commercial). Are pharma cos responsible for issuing cease and desist orders for all of them? It could become very difficult – and have a chilling effect on marketing innovation.
February 20th, 2009 at 9:34 pm
I don’t think pharma should bear responsibility for attempting to remove all content. I think this is a case of commercial speech that falls under a regulatory authority vs. public speech, including parody, which is protected, unless we can prove public harm. I agree with Mark, maybe less of a commentary on risk tolerance and more of a legal technicality–but glad it is encouraging dialogue.