LS&HC Horizons 2023 - Flipbook - Page 49
Hogan Lovells | 2023 Life Sciences and Health Care Horizons | Cross-jurisdictional
49
Watch the #hashtag: social media rules can trip up the unsuspecting
Social media communications are subject to
the same labeling and advertising regulations
as that of traditional media. But, social media
does not adhere to borders where rules might
differ. Thus, geographical reach is critically
important because direct-to-consumer product
promotion is allowed in the U.S. In the EU
and UK, prescription drug promotion cannot
be directed to the general public – and the
line between non-promotional activities
and product promotion can be crossed by
mentioning a product. Posts, likes, and
shares all become infinitely complex when
international borders are at issue because,
even with guardrails, content can quickly
travel beyond its intended audience.
Some, but not all, of these aspects are
addressed in a new International Federation
of Pharmaceutical Manufacturers and
Associations (IFPMA) and European
Federation of Pharmaceutical Industries and
Associations (EFPIA) Guidance published in
September 2022 and Prescription Medicines
Code of Practice Authority (PMCPA) Social
Media Guidance published in January 2023.
Of course, social media communications may
inadvertently trigger adverse event reporting,
data privacy, and IP/copyright issues.
We anticipate increased enforcement from
regulatory authorities and challenges from
competitors in this area. In the U.S., company
social media use is scrutinized by both the
FDA and the Federal Trade Commission (FTC).
In the UK, the PMCPA upheld complaints
against companies for activities found to
be promotional, including a UK employee’s
“liking” of a LinkedIn post made by a
U.S.-based colleague. Companies in the EU
may monitor their competitors’ social media
activities and challenge non-compliant posts.
For all these reasons, companies need clear
policies respecting different national and
regional advertising standards. And, they
should use internal approval tools and
checklists to assure that social media activities
comply with relevant jurisdictional rules.
Training is essential. Further, given the likely
volume of social media activities within a
company, handling such projects efficiently can
be challenging. To help make this manageable
for legal/compliance teams, effective
delegation and self-monitoring procedures
and providing project owners with appropriate
tools/checklists are key.
Meredith Manning
Partner, Washington, D.C.
Dr. Jörg Schickert
Partner, Munich
Stephanie Agu
Associate, Washington, D.C.
Dr. Daniela Troeppner
Associate, Munich
Jane Summerfield
Partner, London
