3 Federal Agencies Taking on Social Media Ads

Four Armstrong Teasdale attorneys say that three federal agencies, including FDA, are likely to increase their oversight of social media ads in 2016. Writing in an online blog post, the four say recent statements and actions by FDA, the Federal Trade Commission (FTC), and the Consumer Financial Protection Bureau (CFPB) “forewarn of additional regulatory enforcement of advertisements on social media.”

The post cites a recent FDA social media policy that clarified that agency employees don’t need permission or approval from FDA supervisors or management to use social media in a personal capacity. But it limits information that can be shared on compensation, non-public information, and improper use of titles and authority, among other things. The policy also allows FDA scientists to obtain corrections for any social media comments made that rely on their science but are incorrectly broadcast.

The FTC said recently that it will prioritize investigating the use of false online reviews, undisclosed material connections with reviewers, and prohibitions on negative reviews. And it issued an enforcement policy statement and guidance on so-called native advertising, advertising that mimics the medium in which it is distributed.

The post adds that while the CFPB has not yet taken action directly related to social media marketing, it has issued a policy statement in which it disclosed that as part of its efforts to regulate social media, it “may collect or use a limited amount of personally identifiable information when using social media to further its ability to interact with the public.”

Agencies such as these three are predictable, the attorneys conclude, in that increased guidance in a particular area typically is followed by increased enforcement activities. “Companies that believe the informality of social media translates to informality in how they message their product may have a rude awakening,” they say. “Thus, companies that advertise on social media, even if it is simply by having celebrities promote their products to their social media followers, should beware that those ads may be the subject of heightened government scrutiny.”