Adequate Disclosures in 140 Characters or Less-analysis of How Endorsers Should Approach Advertising on a Platform With Character Limitations

• Publication year: 2015

Adequate Disclosures in 140 Characters or Less-Analysis of How Endorsers Should Approach Advertising on a Platform with Character Limitations

Jacob Hughey

ADEQUATE DISCLOSURES IN 140 CHARACTERS OR LESS- ANALYSIS OF HOW ENDORSERS SHOULD APPROACH ADVERTISING ON A PLATFORM WITH CHARACTER LIMITATIONS

Jacob Hughey^*

Abstract

Social media websites such as Twitter and Facebook have transformed the way businesses and individuals market their products and services. These websites have given advertisers and promoters the ability to advertise directly to consumers who would most likely be interested in their products or services. In theory, this should benefit both the consumer and the owner of the product or provider of the service. The product owner or service provider can more efficiently use its marketing resources, and consumers will be exposed to advertisements of products and services catered to their interests. This increased ability to target specific consumers, however, brings an increased risk of consumer deception. After recognizing this increased risk, several federal agencies empowered to protect the consumer from deceptive trade practices have published guidance on how to proceed to communicate an advertisement on social media sites to avoid the risk of deception. This seemingly premature application of consumer law to these websites has created many problems and concerns. Many of these sites have character space limitations, "CLP's", which would restrict the ability of businesses to effectively communicate an advertisement while also providing the necessary disclosure requirements. While it is clear that these agencies are not excluding these mediums from disclosure requirements, which is where the clarity ends. This Article is focused on highlighting the major issues that arise for advertisers, consumers and promoters that are using social media sites. It also addresses common themes in each of the agencies' guides concerning the use

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of social media websites and makes an effort to interpret a very unclear area of law.

Introduction

"If there is one thing more dishonest than dodgy marketing, it is the pretense that marketing raises no ethical concerns. The truth is that marketing raises enormous ethical questions every day—at least it does if you are doing it right."

—Rory Sutherland, Vice-Chairman, Ogilvy Group UK.¹

Rather than communicate this message through Twitter, Rory made this statement in an article posted on a marketing blog site. Which makes sense, because if Rory attempted to convey this message through Twitter it would look like this:

"If there is one thing more dishonest than dodgy marketing, it is the pretense that marketing raises no ethical concerns. The truth is that"

Like many social media sites, Twitter has character limitation requirements imposed on messages conveyed through its website. In order for Rory to effectively communicate his message he would have to create two separate tweets, shorten the length of his message, or provide a hyperlink that directs his followers to his full quotation on a separate website. So while Rory might be annoyed, he has different options to choose from as to how he would like to convey his message.

Suppose that rather than posting a favorite quote on Twitter, Rory wanted to express how satisfied he is with his new blood pressure medication called "HEARTLY." So with little premeditation, Rory promptly pulls out his mobile phone and publishes the following tweet:

"Luv my new BP med. Feeling like a million bucks. #blessed #HEARTLY"

While this is a clear endorsement of the drug HEARTLY, Rory is not under contract to promote HEARTLY, and his Twitter followers would not be misled if they assumed that this was Rory's truthful opinion and experience with the drug.

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Let's change the facts again. Let's assume that Rory is not a person but actually an advertiser of the drug HEARTLY. Now if Rory makes the same statement about the drug HEARTLY, Rory's statement is transformed from an opinion into an advertisement subject to FDA regulations. These regulations would require an advertisement of a blood pressure medication such as HEARTLY to contain certain disclosures about the risks of using HEARTLY. The FDA has made it clear that advertisements conveyed through platforms such as Twitter are not exempt from these disclosures. Accordingly, any message without these disclosures would subject Rory and other parties involved with the drug HEARTLY to liability.

Once more we change the facts and assume Rory is a male celebrity who uses HEARTLY and sincerely enjoys the benefits that he has experienced using HEARTLY. Rory also has an endorsement deal with HEARTLY and makes a commission based on the amount of HEARTLY sold each month. Rory wants to publish the following message on his Twitter:

"Luv HEARTLY- BEST BP drug ever"

This poses a problem for Rory as well as the marketing team of HEARTLY. This tweet would be considered an endorsement of a product by an individual with a material connection between himself and the drug. While this tweet is Rory's honest and truthful opinion about HEARTLY, the fact that Rory is benefiting from the sale of the drug must be disclosed to prevent consumer deception. Despite there being no evidence of Rory's intent to mislead his followers, the federal agencies created to protect consumers are not concerned with the subjective intent of the endorser. Their focus is on how the consumer perceives the message.² This poses the question of how much disclosure is necessary to prevent liability. Would it be sufficient to just disclose the material connection that the celebrity has in the message with an #Ad or similar abbreviation? Or is the celebrity also required to comply with the disclosure requirements provided by the FDA regarding the prescription drug HEARTLY in 140 characters or less?

The answer is unclear. In an effort to comply with disclosure requirements while marketing on these Character Limited Platforms ("CLP's"), many

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businesses and individuals have asked for guidance from consumer protection agencies on how they should approach advertising on CLP's like Twitter.³ In response to their pleadings, these agencies have published and edited previous guidance documents that attempt to address how advertisers should approach marketing on CLP's.⁴ While each agency was created with a different purpose, many of their responsibilities with regard to consumer protection overlap. The published guides have similar messages and themes. For example, they each make it clear that CLP's are not exempt from disclosure requirements.⁵ Many times a simple #AD or hyperlink is not sufficient disclosure, and if the required disclosure in the message does not fit the CLP's space requirements, the advertisement should not be published on that platform.⁶

I. The Rise of Social Media and Its Effect on Marketing

A. Definition of Social Media

There have been many definitions of social media and what it entails. So for the purpose of this Article, it will be defined broadly as provided by the FFIEC:

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Social media is considered to be a form of interactive online communication in which users can generate and share content through text, images, audio, and/or video. Social media can take many forms, including, but not limited to, micro-blogging sites (e.g. Facebook, Google Plus, MySpace, and Twitter); Forums, blogs, customer review websites and bulletin boards (e.g. Yelp); photo and video sites (e.g., Flickr and YouTube); sites that enable professional networking (e.g., LinkedIn); virtual worlds (e.g., Second Life); and social games (e.g., FarmVille and CityVille).⁷

The FFIEC states that, "social media can be distinguished from other online media in that communication tends to be more interactive."⁸ It is this interaction between businesses and consumers that generates concerns in the world of advertising. When used properly, social media can be an extremely efficient and effective communication method that provides benefits for both consumers and producers alike.⁹ However, the informality of a message communicated though this medium creates an inherent risk of deception.

For example, a drug manufacturer was recently issued a formal warning letter by the FDA for a deceptive ad posted by social media maven Kim Kardashian.¹⁰ With more than forty-eight million followers,¹¹ Kardashian is one of the most followed people on Instagram and is often paid by companies to endorse products.¹² The Instagram post at issue was a picture of Kardashian holding a bottle of the morning sickness medication, Diclegis, while making one of her signature selfie faces.¹³ The caption attached to the filtered photo was a glowing review about the positive effects of the drug, and a claim that

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"there was no increased risk to the baby" when taking the morning sickness medication.¹⁴ In its formal warning letter to the drug's manufacturer, Duchesnay USA, the FDA stated the endorsement was deceptive because it failed to communicate any risk information. This is especially problematic on a public policy level because it "suggest[s] that Diclegis is safer than has been demonstrated."¹⁵ In response to the FDA's warning, Kardashian deleted the original post and replaced it with the following caption:

#CorrectiveAd I guess you saw the attention my last #morningsickness post received. The FDA has told Duchesnay, Inc., that my last post about Diclegis (doxylamine succinate and pyridoxine HCl) was incomplete because it did not include any risk information or important limitations of use for Diclegis. A link to this information accompanied the post, but this didn't meet FDA requirements. So, I'm re-posting and sharing this important information about Diclegis...."¹⁶

The post went on to list important safety information such as allergy concerns, common side effects, and a link to a website created by Duchesnay USA with more information about the drug.¹⁷ The new...