Doing drugs: social media skates on thin regulatory ice

  • Digital
  • August 17, 2010
  • Michael Carney
Doing drugs: social media skates on thin regulatory ice

In this edition of Michael Carney's Marketing Week:


  • How marketers in restricted categories can use social media and still meet their regulatory obligations

  • The Consumer Guarantees Act gets a spruce up as it gets with the digital auction programme

  • Google TV: another paradigm shift?

  • The fibre optic cult: does the investment actually pay dividends?

  • Digital goes legit at the Brainy Breakfast


Why marketers shouldn't do drugs

It's never much fun when parents receive a letter from the principal alerting them to the mischief that their young darling has been causing at school. It's a whole lot worse when the letter is to pharmaceutical company management and it's from the American Food & Drug Administration (FDA) with a clear message: cease and desist.

Drugmaker Novartis found itself in that extremely unpleasant situation last month, when the FDA demanded that the company remove a "Facebook Share" widget on the website for its leukemia drug Tasigna. What? These widgets are at the heart of the new social web. Sharing via Facebook is virtually guaranteed by the American Constitution (or, if not, it should be). What's going on here? What this incident illustrates is one of the perils of today's technology, especially if you're in a closely regulated industry such as pharmaceuticals or (any day now) financial services.

As ReadWriteWeb said, the "Share This" tool drew its content (the words that were shared with Facebook users) not from the material displayed on the Tasigna page but from its metadata, the content designed for search engines and not usually visible to human visitors to the web page. Unfortunately that metadata just didn't comply with FDA requirements. As the FDA's letter points out:

The shared content is misleading because it makes representations about the efficacy of Tasigna but fails to communicate any risk information associated with the use of this drug. In addition, the shared content inadequately communicates Tasigna's FDA-approved indication and implies superiority over other products. Thus, the shared content for Tasigna misbrands the drug in violation of the Federal Food, Drug, and Cosmetic Act and FDA implementing regulations.

Oh, is that all? Well, no. The FDA also dinged Novartis for failure to submit the Facebook Share widget for approval as is required for pharmaceutical promotional materials. Novartis removed the Facebook Share widget after the FDA's request, but it also made another change. The company edited the description in the metadata of each page to conform to FDA rules.

The Bigger Picture

Pharmaceutical marketers around the world are facing some tough challenges, of which the "Facebook Share" incident is just a recent example. In today's always-connected world, consumers are turning to the web and each other (through social networks) for information on symptoms, diseases and treatments; self-diagnosing before they even visit a doctor. There's a high risk of misdiagnosis and desperate need for expert advice.

Unfortunately, this cyberchondria is likely to go unchecked, at least in terms of input from the pharmaceutical companies. Their hands are tied by regulators, usually for the very good reason that typical advertising behaviour (puffery, unsubstantiated claims, unfettered performance promises) can have somewhat terminal side-effects in this particular industry. As we noted when we last discussed the problem (in October last year, just before an FDA hearing to consider social media and the pharmaceutical industry):

Exactly how do you provide the usual slab of "prescribing information" (often hundreds of words outlining the risks associated with a given remedy) in an environment such as Twitter (140 characters) or even Google Adwords (12 words)? Must any 'fans' of a pharmaceutical product provide written disclaimers before going viral with their endorsements?

In its presentation to the FDA hearing, Ogilvy's 360 Digital Influence arm made these comments:
1. How can marketers fulfill regulatory requirements with space-limited social media?

  • The space and real time limitations of social media make it unreasonable in some online communications such as Twitter to include full fair balance, Important Safety Information alongside any branded message.

  • Including fair balance, Important Safety Information that is the online equivalent of a "turn of a page" is reasonable.


The Suggested Solution

  • The FDA should enforce the "1-click rule" – in effect ensuring the full fair balance, Important Safety Information is AT MOST one click away from any branded message.


2. What parameters should apply to posting corrective information on third party sites?

  • Marketers should not be responsible for policing any content that anyone posts online that relates to their products or brand that has not been developed by company.

  • The exception to this rule is if the content meets any of the "3 C's Rule" noted below.


The Suggested Solution:

  • Marketers are not responsible for posting corrective information unless they are deemed accountable for that content under the "3 C's Rule."


3. What online communications should marketers be accountable for?

  • There should be a simple and consistent way for determining accountability for any content online.

  • Marketers should not be held accountable for content that is not under their control or influence.


The Suggested Solution:

  • Implement "The 3 's Rule" -- marketers should be held accountable if the answer to any of the 3 "C" questions below is yes: Creation: did the marketer create the content and has it not been altered or excerpted in any way by a third party? Collaboration: did the marketer work directly or indirectly with any third party to create the message? Compensation: did the marketer fund the creation of the message or compensate the creator in any way?



The jury's still out on the vexed issue of whether pharmaceutical companies should be allowed keys to the social kingdom. In the meantime, however, another industry sector has stepped up to the bat: pharmacy. Earlier this month, two of America’s largest pharmacy chains, Walgreens and Rite-Aid, rolled out programmes in which their customers can use internet chat to talk with pharmacists about medical advice 24×7. However, the two chains have taken significantly different approaches.

Walgreens has given its pharmacist-chat-teams full access to its medical databases on patients across the country while competitor Rite-Aid took the more conservative route of limiting chatters to generic advice based on nothing more than what consumers choose to share.

As retail technologist Evan Schuman remarked:

Walgreens' more daring approach has some huge potential benefits. For example, what if a consumer asks about a particular drug interaction with an over-the-counter (OTC) sleep aid but forgets to mention a long-term prescription? With the ability to see that consumer’s full list of medications, the pharmacist could spot a problem and potentially prevent a life-threatening combination. How much consumer loyalty is earned by a chat that proactively saves a patient’s life?

The ability to add in OTC drug questions and information to consumers’ databases is also medically valuable. It would allow their personal pharmacist in their local branch to flag OTC interactions, which those pharmacists otherwise would have little way of knowing (unless an eagle-eyed cashier happened to notice).

In our view, pharmacy does have a valuable role to play in social media, providing (as it does in the real world) a buffer between pharmaceutical companies and the public at large. There is the usual problem of "where's the money?" Who pays for pharmacists to dispense free advice online? Government? Pharmaceutical companies? Users?

Resolution remains somewhere beyond the horizon.

Consumer Protection Redux

It's not generally well-known, but transactions on Trade Me are sometimes protected by the Consumer Guarantees Act (CGA). Mostly they're not. But regulators hate anomalies so the CGA has been going through a review process which is likely to lead to a makeover.

The CGA generally requires that any good or service offered for sale by businesses to consumers:


  • is of acceptable quality

  • is fit for its intended purpose

  • complies with its description

  • is similar in key particulars to any samples displayed

  • has repairs and spare parts reasonably available


The CGA also spells out remedies and rights available to consumers if goods or services do not measure up. When the Act became law in 1993, the internet was still just a spring chicken in New Zealand. Neither Trade Me nor eBay had been invented and auctions typically took place in a poorly lit room with a hyperventilating auctioneer and a bevvy of secondhand dealers competing for underpriced bargains to resell at obscene profits.

From the perspective of the lawmakers at the time:

Under section 41(3) of the Consumer Guarantees Act, an item sold at auction or by competitive tender is exempted from the guarantees of acceptable quality, fitness for purpose, and the other guarantees under the Act.

Auctions are exempted because they are conducted on a buyer beware basis and on the understanding that there are no rights of redress after completion of the sale. A traditional auction is a method for determining the value of a commodity that has an undetermined or variable price, although in some cases, there is a minimum or reserve price; if the bidding does not reach the reserve, there is no sale.


Auctions are not defined under the CGA. Legislators relied on the Auctioneers Act for that description. Unfortunately, the Auctioneers Act was passed into law in 1928, when neither Trade Me nor its ilk could have been reasonably foreseen. And some curious anomalies arise with Trade Me sales as a result of the march of technology.

  • If you purchase an item on Trade Me by bidding in an auction, you are not protected by the CGA (although the Fair Trading Act does apply)

  • If on the other hand you use the Buy Now button (turning the auction into a fixed price transaction) AND you are dealing with someone who is operating as a business in their Trade Me deals, then the CGA does apply

  • Similarly, an item listed as up for auction escapes the CGA. However if that item fails to sell at auction and a fixed price offer is made, that offer DOES come under the auspices of the CGA


In other words, current CGA regulations create confusion and inconsistency. As the CGA review which is currently taking place notes:
There would appear to be justification to clarify that Trade Me style auctions should not be exempted from the Consumer Guarantees Act.

Most likely outcome: bit of a makeover to tidy things up.

Convergence Gets Real

Got an iPad? Seen one? Or at least heard the hype? Lots of folks out there think it's a game changer, right? Even before we've scratched the surface of what the iPad can do (and actually that's not a very good metaphor, considering the iDamage that would result), we thought we'd better give you a heads up. There's another massive paradigm shift coming your way.

This one's coming to your living room. And it's called Google TV. Yeah, yeah, we hear you mutter. Heard about that. Another web/TV thing. Been there, done that. But Google TV is a bit different. Okay, a lot different.

Firstly, because of who's behind it: Google, of course. And Sony, providing the TV technologies (new sets that include the Google TV functionality plus a Blu-Ray player). Set-top box maker Logitech, providing a Google TV device to plug into those not very old HDTV set out there. Intel for the computing hardware grunt.

Secondly, because the Google TV platform runs on Android, the same technology that powers those snazzy new phones that compete with the iPhone. You can use your smartphone as a remote control for Google TV, or even as a preview device, finding something you want to watch and then "pushing" it to your TV for the whole family to watch.

Thirdly, the Google TV Search facility is as smart as you'd expect the search giant to deliver. Search for your favourite TV series by tapping its name into your smartphone/remote keyboard and Google TV Search will give you a shortlist of (a) episodes currently available through any web source (eg broadcasters such as TVNZ On Demand or TV show sellers such as Amazon); and of course (b) future search, episodes listed on EPGs as coming up. If you've got a PVR such as MySky or TiVo connected, one click will set the shows up to record.

Youtube Video

Fourth, Google's making the whole android/Google TV operating system Open Source, and encouraging any developers anywhere to innovate and build new bells and whistles for the Google TV environment.

Fifth, Google TV is tapping into the exponentially-expanding social web so that you'll be offered video/TV recommendations based on what your friends have watched or liked, or what you've watched in the past.

Sixth, YouTube's millions of clips are being made available in a whole new leanback mode to push content at you (based on your and your friends' preferences, favourites and likes) so you minimise your searching and maximise your viewing.

We could go on, but we hope you get a bit of the flavour. Google TV is launching in the U.S. in "the Fall" (our Spring, not far away now). Better watch for it. Don't say we didn't warn you.

Cargo Cult?

Is our government’s commitment to fibre to the home and high speed broadband little more than a ‘cargo cult’? That’s the question that’s being posed by the Motu Institute at University of Waikato and the Institute for the Study of Competition and Regulation at Victoria University.

As reported by Commsday:

Building on a 2009 study by the Motu Institute which found that whilst the move from no broadband to slow broadband yielded productivity gains, the move from slow broadband to high speed fibre based broadband had ”no discernable additional effect” Howell and Grimes have now gone further. In a recent paper “Feeding a Need for Speed or Funding a Fibre ‘Arms Race’?” they ask whether a broadband productivity paradox is now emerging that mirrors the more general paradox found within the ICT sector where massive investment has not yielded the expected productivity gains.

Personally, we don't care. We just want our fibre thanks, and decent speeds to bring the world closer to us. Let's not get too hung up about little things like ROI.

Digital: Gone Legit Yet?

Some of us have been playing in the digital space for, well, rather a long time. For myself, it's been more than twenty years. We recall some of our quaint efforts in the nineties to drum up enthusiasm for online promotion in the advertising and marketing industries. They all wanted to pick our brains but no-one wanted to spend much money on this still youthful medium.

We've come a long way, baby. Now digital has become mainstream and is a significant part of most marketing endeavours. And yet, and yet. For many marketers it still feels like half the challenge is getting the organisational buy-in and the necessary resources to start taking online marketing seriously.

Typical problems can include:


  • Turf wars over digital responsibilities.

  • A lack of understanding by senior management.

  • Difficulties for traditional marketers over activities outside their comfort zone.


Good news, if those are some of the issues facing your organisation: the next Jericho Brainy Breakfast, from 7-9am on August 25 is going to make your day. What's a Brainy Breakfast? It's a combination of a sit-down brekkie and a stimulating hour or so listening to leading Kiwi (and sometimes international) experts talking about the latest digital happenings. The Brainy Breakfasts, sponsored by email specialists Jericho, have been running for quite a few years now (about once every six weeks) and are a stimulating way to start the day, even if you're not much of a morning person.

This next Jericho Brainy Breakfast, organised as usual by the NZ Marketing Association's special interest group on matters digital, The eMarketing Network [Michael Carney is chairman of the eMarketing Network] has arranged for three expert speakers who will cover:


  • How organisations are overcoming the digital/marketing divide and structuring integrated teams

  • How to build organisational knowledge around digital

  • How to educate senior management and win over traditionalists

  • How to recruit the right skills for digital marketing and up-skill traditional marketers

  • The importance of selecting the right agency partners


The speakers:

Tui Fleming, multichannel marketing manager, The Warehouse, will talk about "Starting the digital journey - fresh learnings from The Warehouse".


  • Getting buy-in from sales and marketing teams

  • Understanding the independencies, overlaps and tensions

  • Making the transformation from silo to integration across the business

  • Learnings from how a digital team operates


Rebecca Smith, marketing consultant and former head of business communications, Telecom New Zealand, will take us through "Identifying and overcoming barriers when making the digital shift; how Telecom embraced social media marketing".

  • Consider what you need to stop doing in order to shift gear into social media marketing

  • Influencing and getting buy-in from across the organisation including senior management

  • How team structure and digital focus has evolved for a big corporate

  • Overcoming obstacles: sceptics, headcount, resource, money, knowledge


And Richard Manthel, managing director, Robert Walters, will cover "Recruitment needs in digital marketing: sorting the tweet from the chaff".

  • Resourcing: how organisations are structuring digital teams now and what skills they're looking for

  • How the New Zealand employment market is reflecting the boom in digital and social media marketing

  • Where the current recruitment needs lie within digital marketing

  • How the employment market is likely to evolve in the next 12-18 months


Richard will show NZ employment trends within a global context (from the perspective of a recruitment organisation with 38 offices in 18 countries)

This Jericho Brainy Breakfast takes place on 25 August) at Auckland's Crowne Plaza Hotel. Marketing Association Members pay $65 + GST, Non Members $80 + GST. Head here for more details and to book your seats.


  • Be sure to check out Michael Carney's new tome, a "carefully-selected collection of Social Media campaigns from NZ and around the world, explored and analysed (and full of ideas worth stealing)." There are only 39 copies left. And they'll probably be worth millions one day. You can get a special deal here. And the Social Media Marketing eCourse has multiplied and now comes in several, more specific flavours: travel and tourism, cause-related, small business and the original. And for 'Those Who Don't Want to Read the Manual But Just Want To Get Stuck In', there's also another new offering, the Social Media Kickstart Package. Email michael@netmarketingservices.co.nz and speak with the oracle himself. But wait there's more, Carney is also putting on six webcasts, covering everything from mobile marketing to online video and pretty much everything digital inbetween. Check out what's on offer here and email bookings@marketingrebooted.co.nz to sign up.

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