New Guidance for Social Media Marketing in Regulated Industries

February 24, 2014

Allison McMenimen

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New Guidance for Social Media Marketing in Regulated Industries

Within the past month, two highly regulated industries – pharmaceuticals and banking – have finally received some definitive direction from their respective federal governing bodies around what they can and cannot do via social media channels. We’ve looked into these new regulations, as well as existing PPC and marketing guidelines for the health care industry.

Pharmaceuticals and Biologics

On January 13, the FDA released Guidance for Industry Fulfilling Regulatory Requirements for Postmarketing Submissions of Interactive Promotional Media for Prescription Human and Animal Drugs and Biologics. Intended for the manufacturers and marketers of prescription human and animal drugs and biologics, the document covers “interactive promotional media” (blogs, microblogs, social networking sites, online communities, and live podcasts) that allow for “real-time communications and interactions.” The FDA guidance is currently in comments mode, meaning that manufacturers and marketers have an opportunity to weigh in with input and concerns until mid-April 2014. A final version of the guidance is expected to be released in July 2014. A January 2014 alert by Arent provides additional information in a FAQ format.

Banking and Finance

Originally proposed in January 2013, and after a comment period similar to the FDA version, the Federal Financial Institutions Examination Council’s (FFIEC) social media guidance for the banking industry is now its final form. “Risk avoidance is not an option, and the main takeaway when gauging your institution’s role in social media is this: proceed if you must, but proceed with caution and don’t take any shortcuts that you wouldn’t take with any other business venture,” wrote Tom Hinkel in an excellent February 2014 article in Bank Systems & Technology. According to Hinkel, “Vendor management is where the biggest challenges lie for financial institutions.”

Each social channel — that means Twitter, Facebook, and any other third party services — is considered to be a provider. “Regulators are requiring the same degree of due diligence for social media vendors that they require for all other potentially high-risk service providers,“ wrote Hinkel. “The bank is expected to be aware of matters such as the vendor’s reputation, their policies regarding use of its information and the customer’s information, how and how often their policies might change, and what, if any, control the bank has over the vendor’s policies and actions.”

Responsibilities of Marketers and Agencies in Health Care Remarketing

In the case of medical products and health care, the HIPAA Omnibus Rule, which took effect in 2013, restricts the use of protected health information (PHI) by marketers. As digital marketers, it is our responsibility to vet the providers we use for our clients’ pay-per-click and social media marketing campaigns. Google has provided explicit direction to marketers around what you can and cannot do in interest-based PPC advertising. Google’s PPC rules contains a comprehensive list of “sensitive categories” that includes pharmaceuticals and health information, with clear-cut examples of acceptable ads, as well as rationale around what is and is not allowed.

“Ads which don’t imply knowledge of a user’s medical situation would be allowed to run,” says Google. “In creating ads for remarketing campaigns in this category, the ad content should not imply knowledge of a person’s medical history or health conditions.”

The Nina Hale, Inc. Takeaway on Industry Regulations

Marketing products and services in highly regulated industries has always been challenging, and it is now increasingly important to be aware of guidance and restrictions handed down from the regulatory bodies that govern our clients’ businesses.  It is our responsibility to understand, and to be compliant with laws related to promotion of regulated products and services. Finally, rather than looking at this new guidance as a move to inhibit creativity, we should applaud the FDA and FFIEC for providing some definitive rules and regulations around social media and other forms of online marketing for their respective industries.

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