Dietary supplement companies should police their social media pages for disease claims from consumers and review how their website search fields operate to reduce the risk that FDA will regulate their products as drugs. As noted in a story by the Alliance for Natural Health, FDA recently issued two warning letters to companies based upon the content of and actions taken on social media websites like Facebook and how a search field operated.
In the first warning letter, which was issued to AMARC Enterprises, FDA objected to the company “liking” a consumer’s post on its Facebook that said the company’s products product helped “keep cancer at bay without the use of chemo and radiation.” FDA also disapproved of AMARC putting a link on its Facebook page to a blog article entitled, “Children with Cancer Often Use Alternative Approaches,” which was located on the company’s website followed by a statement about where consumers can find more information about how the company’s product can support the body during cancer and cancer therapy.
In the second warning letter, which was issued to M.D.R. Fitness Corp., FDA took issue with the company’s product search field on its website because typing diseases into the search field, such as “cancer” or “ diabetes,” brought up product lists. According to FDA, this implied that the company’s products were drugs.
FDA’s position in these two warning letters has broad implications for the dietary supplement industry. These letters illustrate that social media and search terms are not off limits. Under its broad intended use doctrine, which FDA uses to categorize a product’s regulatory class, FDA is more than willing to use social media and search terms as a basis for construing evidence of intent to sell supplements as drugs. Specifically, it is willing to interpret “liking,” or even possibly sharing or retweeting, a comment as endorsement of the comment. Whether or not FDA will construe a company’s failure to delete from its wall a testimonial from a consumer that makes disease claims as evidence of intended has yet to be seen. As a result, the free interchange of ideas and information on the internet will be dumb downed and companies will have to expend resources policing consumer comments, possibly unfriending consumers who make diseases claims, and assuring that risky search terms do not bring up any products.