123s of Using Influencers in Social Media Medical Advertising

November 22, 2019

Social media is discussed ad nauseam, so it’s always important to begin any discussion of social media by placing it in context.  About 3.5 billion (with a “B”) people actively use social media every day, and about 3.46 billion people access it via mobile devices.  This amounts to about half of the world’s population.  Worldwide, the average person spends around 7 hours per day on the internet, and 2.5 hours of that 7 is spent on social media.  This means that roughly one-third of all internet use on a given day is social media-based.  Depending on who you talk to, advertisers in the U.S. will spend anywhere between $15 and $30 billion on social media marketing this year alone to reach those users. So, for better or for worse, social media is not going anywhere anytime soon.

A popular method of advertising on social media is through the engagement of “influencers.”  As you likely already know, influencers are social media users who, by virtue of their looks, personality, or talent, have developed large follower bases.  These follower bases are easily reached by the influencer, and, because follower bases are self-selecting (i.e., the followers choose to follow the influencers), they are particularly susceptible to the influencer’s message.  Consequently, influencer advertising is highly valued since brands borrow the influencer’s reach and credibility to spread their advertising message, which is often designed to blur the lines between organic user content and paid influencer advertisement.

However, this blurring of the lines often leads to issues with using influencers in medical advertising.  So, if you currently use or plan to use social media influencer advertising, here’s what you need to know:

State Medical Advertising Laws

It’s important to remember that no matter how you choose to advertise, you must comply with your state’s medical advertising laws.  While these laws vary from state to state, every state has a standard similar to this: do not advertise in any manner that is false, deceptive, or misleading.  So what does that mean?   You must take care to advertise in such a way that you do not, among other issues, create unjustified expectations about results; advertise or assure a permanent cure for an incurable condition; guarantee results; advertise professional superiority that cannot be verified; provide false, deceptive, or misleading testimonials; or fail to identify models and actors used in advertising.  Thus, when engaging an influencer for advertising purposes, you must first consider your state’s restrictions to ensure your advertisement is compliant.

FTC Advertising Requirements

On top of your state’s medical advertising laws, the Federal Trade Commission (“FTC”) has rules prohibiting “unfair methods of competition and unfair or deceptive acts or practices” in commerce.  While this is a broad prohibition, compliance with the FTC can be reduced to three simple concepts: honesty, transparency, and disclosure.  The FTC is particularly concerned with the fact that the average social media user may have trouble distinguishing between organic user content and paid advertising.  To that end, the FTC has determined that anytime an influencer performs marketing services, they are making what the FTC considers an endorsement.  Accordingly, the FTC requires that an influencer must disclose any material connections that exist related to the product or service when using social media to make an endorsement.  Material connections are any connection that might affect the weight or credibility consumers give the endorsement. So, an influencer must disclose a business or family relationship related to the advertisement; a monetary payment connected to the advertisement; or the receipt of free product or services related to the advertisement.  The disclosure must be made in plain language that is easy to see or hear and is clear across all social media platforms and devices.

Use a Contract

As made clear in the sections above, using influencers for medical advertising requires careful regulatory consideration. Accordingly, it’s important to use contracts to allocate risk and reduce the potential for unmet expectations.  There are multiple potential pitfalls associated with engaging an influencer for medical advertising. By using a contract, you can address these issues and ensure key items like content, payment, competition, and regulatory compliance are all addressed.  For example, you may want to give the influencer creative license in writing the advertisement so their voice comes through (or not). Regardless of who is writing the ad, a physician must have final say over any and all medical claims.  You may also want to get creative in compensating the influencer, but you must structure the payment in a manner that is compliant with your state’s anti-kickback laws.  By memorializing the important aspects of the influencer-advertiser relationship, you can ensure the advertising meets your standards and expectations and the relationship complies with relevant state and federal law.

If you have any questions on using influencers in medical advertising, or social media advertising in general, please contact us at info@byrdadatto.com.

ByrdAdatto attorney Sam Pondrom

Samuel E. Pondrom

Sam works in partnership with clients addressing their complex business and health care regulatory issues in the most simple, straightforward way