FTC Guides on Endorsements and Testimonials

Written by Guest Blogger Arnie Fiede (ARNIE FRIEDE & ASSOCIATES)

October 12, 2009

AI think there are corollary implications in the pharmaceutical and device context from the FTC’s revised guides on endorsements and testimonials. Let me put it this way. The FTC’s guides talk about bloggers on their own sites but with relationships to advertisers and whether and when those relationships effectively make the blogger an agent of the advertiser (or, as the FTC terms it, when the blogger is effectively “sponsored by” the advertiser).

In the FDA context, we have an opportunity, particularly in connection with the upcoming Internet Hearings, to evaluate a corollary proposition. In other words, when should postings by bloggers on a company sponsored blog or web site be attributed to the drug or device company that sponsors the blog or the web site? Is it the case that any such posting by a third party blogger with no relationship with the sponsor, except perhaps that the blogger has been prescribed one of the company’s products, and say, that mentions an off-label use should always be imputed to the sponsoring company? Or, are there circumstances or techniques (e.g. disclaimers) that would not necessarily treat such posting by bloggers on a company sponsored web site as affirmative representations by the company sponsoring the blog? Why should all such statements be imputed to the company that sponsors the blog or web site? After all, if the unaffiliated third party blogger posts these randomly on the internet they are not attributed to the sponsor? How would FDA reconcile a fresh approach to this question with how the Department of Justice and the Office of Inspector General might handle these off-label matters? Anyway, there is a lot here to think about and a lot to delve into in the upcoming FDA Internet Hearings.