Legal Ins and Outs of Food Advertising

Shook Partner Lindsey Heinz and Associate Elizabeth Fessler discuss the regulatory and legal implications of food advertising, especially through social media, in the podcast available below. What types of scientific substantiation do companies need to supply for labeling claims, particularly those related to health and safety? Do the U.S. Food and Drug Administration (FDA) and Federal Trade Commission (FTC) look to websites and social media when reviewing products for regulatory compliance? What should companies know about retweeting or sharing third-party endorsements?

Listen to the podcast (6:53) and read the transcript, available below.

LINDSEY HEINZ

Have your cake and tweet it too—managing social media marketing campaigns related to food and beverage products can be a tricky legal line to tow.

ELIZABETH FESSLER

Social media continue to be a powerful marketing tool. And as access to technology expands, social media marketing campaigns are increasingly likely to play a significant role in marketing and advertising products.

HEINZ

I’m Lindsey Heinz, a partner at Shook, Hardy & Bacon.

FESSLER

And I’m Elizabeth Fessler, an associate at Shook. We are a 130-year-old premiere litigation firm with 13 offices across the country and in London. Today, we’re speaking to you from Kansas City, Missouri.

HEINZ

For the next several minutes, Elizabeth and I are going to discuss some of the legal and regulatory issues that companies face when it comes to marketing products on social media.

FESSLER

Lindsey, you’ve spent years helping companies avoid regulatory action, litigation and reputational damage. What are some of the important areas to avoid when marketing food and beverage products on social media?

HEINZ

Just like with traditional advertising, all advertising and marketing statements on social media should be truthful and not misleading. Now, this sounds simple enough, but it can sometimes be difficult to put into practice. A good exercise is to try and think of ways that consumers (or plaintiff’s lawyers) might interpret your claims. This goes, of course, for claims on the product label, but also claims on your branded website or social media.

FESSLER

That’s right. Social media often seems like a more “relaxed” marketing space. Additionally, we’ve noticed that some companies have a much less rigorous process for social media posts versus a magazine ad, for example. But a claim in a tweet is still a product claim, and the same rules and regulations still apply.

Lindsey, what kind of support or attribution do companies need to make certain claims?

HEINZ

So, to begin, you need at least the advertised level of substantiation. For example, if your marketing campaign says, “studies show XYZ,” you need studies that actually show that. Beyond that, the FTC advises that consumers expect a reasonable basis for claims. Now, this requires a multifactor analysis of the type of claim, the product that you’re dealing with, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation and the amount of substantiation that experts believe to be reasonable.

Finally, it’s important to remember that a higher standard may apply depending on the type of claim that you’re making. For example, representations related to health and safety claims require a higher level of substantiation based on competent and reliable scientific evidence.

So, Elizabeth, we’ve talked a little bit about the FTC. Can you briefly discuss how the FDA might come into play when we discuss social media marketing?

FESSLER

Sure, FDA has primary responsibility for the labeling of food, while FTC has primary responsibility for the marketing of food. But FDA may look beyond the product label. This is particularly true if your product label references your branded website or social media pages and handles. If that’s the case, most of us that work in this space agree that your social media page can now absolutely be viewed by FDA as part of your product label.

Lindsey, what guidance is there from FDA regarding social media marketing?

HEINZ

So, that’s a good question. There’s actually no guidance in the food and beverage space from FDA when it comes to social media marketing specifically. But there is some guidance in the pharma space, and this really gives us some great insight into how the FDA might look at these issues across other regulated industries.

One in particular that I’d like to highlight here is the FDA’s guidance on correcting independent third party misinformation about prescription drugs and medical devices. Now, this guidance explains that companies are, of course, responsible for communications that are owned, controlled, created or influenced by them. But, importantly, it also emphasizes that companies are responsible for communications that they affirmatively adopt or endorse.

So, for example, while you may not be responsible for an incorrect nutrient content claim made about your food by some random third party in the Twitterverse, you are absolutely responsible for that claim if you retweet it.

The FDA also notes in this guidance that companies should have disclaimers that any user-generated content on their forums is not created by the company. So here’s an example of how that might work in practice: some companies allow consumers to leave reviews on their branded websites. The FDA, at least in the pharma space, would say that you’re not responsible for those product reviews that are left even though it’s left on your actual company page. That said, the FDA would encourage you to have a disclaimer, just to make it very clear to other consumers that the reviews that consumers are leaving are the views of those consumers, not of the company.

In addition to this FDA guidance, alcoholic beverage companies should be aware that there are TTB regulations and industry self-regulatory bodies like DISCUS that have various guidelines, including some specific to social media.

Elizabeth, we’ve talked about the rules and regulations at play, but what about some other issues to consider that are unique to social media?

FESSLER

One of the biggest differences between a more traditional campaign and a social media campaign is the consumer interaction. This can be helpful and drive engagement with the messaging, but it can also be a minefield. Comments on your posts, reposting statements by consumers, bloggers, affiliates, etc., can cause problems. So, what should companies do, particularly about comments left on posts?

In some instances, you may have an obligation to review, monitor and scrub those comments—for example, alcohol companies may be required to do so. While food companies may not generally be obligated to monitor comments, you may want to do so for a variety of reasons, including brand reputation.

In addition to regulatory considerations, you also need to remember that litigation regarding these campaigns is possible. We’ve not yet seen class actions based solely or primarily on social media statements, but that doesn’t mean they couldn’t happen. What we have seen are document requests related to social media. So you may have a challenged label claim, but opposing counsel will still request information and documents from your social media.

HEINZ

That’s right, Elizabeth. Expansion of marketing through social media can provide companies with new ways to interact with consumers, but this content is still marketing that may lead to regulatory action or litigation. Before engaging in this type of marketing, companies should really ensure that they have social media marketing policies in place.

This is something that we often advise clients on. These policies should consider a variety of things, include regulations at play, litigation risks, company policies, how to handle user-generated content, disclosures and more.

FESSLER

Thanks for listening and learning about the growing legal issues around social media marketing and advertising.