And In This Corner, The FDA
Tired of all the acronyms? Employment law is full of them. EEOC, FMLA, ADA, ADEA, ERISA, USERRA, WARN, FLSA, ECPA, OSHA, HIPAA, and I could go on. When it comes to social media, we’ve included NLRA, NLRB, and FTC in the lexicon. Here’s the next one: FDA. As in, the United States Food and Drug Administration entering the ring of discussion by issuing its own “draft guidance” on certain social media use.
The FDA’s draft guidance solicits comments and suggestions for the next 90 days, and constitutes the FDA’s “current thinking about how manufacturers and distributors of prescription human and animal drug products and medical devices can respond to unsolicited requests for information about unapproved or uncleared indications or conditions of use related to their FDA-approved or cleared products.” What??! Say that again?? Basically, what drug companies can do and say to promote their products and devices in a manner other than the uses already approved by the FDA.
The FDA issued this guidance specifically because of this era of cataclysmic social media explosion:
“The rapid growth of the Internet, including social media tools and other emerging technologies, has made it easier for both consumers and health care professionals to quickly seek information about medical conditions and treatments. Many firms have also used emerging electronic media to disseminate product information. As a result, firms may encounter requests for off-label information about their products through product websites, discussion boards, chat rooms, or other public electronic forums that they maintain and over which they have full control. . . . This draft guidance provides FDA’s recommendations to firms wishing to respond to unsolicited requests for off-label information, both requests made directly and indirectly to firms and requests made in public forums, including through emerging electronic media.”
The FDA is, therefore, concerned that the ability to monitor and regulate what may be promoted by a company on a one-to-one basis, may be radically altered by the realities involved with dissemination en masse through social media.
Employer Take Away: What should you as an employer take away from this development?
If you’re not a manufacturer or distributor of drug products and devices, this new industry guidance does not apply directly to you (and, frankly, I’m a little surprised you kept reading to the “takeaway”). But the bigger picture is that we don’t have just one employment law bible, and certainly not just one source to go to for every possible rule on the impact that social media has on business and the workplace.
Judges keep issuing decisions, statutes are being created and applied, and the NLRB updates its views and rulings. Now, here’s yet another body (the FDA) that recognizes the importance of social media enough to throw its own “current thinking” on the topic into the ring. Without just one source book, you as an employer need to continue keeping your eyes and ears open for all new developments in this area, from wherever they may come. And we will do our best to continue being one of those sources.