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What your company needs to know when creating a social media policy

Stephanie Baum

Pharmaceutical and medical device companies seem to view social media with the alternating fascination and horror of watching American Idol. But even if they have no wish to participate, companies still need to craft a social media policy and be aware of how their companies are being represented and talked about.

Those were among the key issues at a recent social media seminar aimed at medical device companies, though none were represented among the audience, maybe because they’re already on the case. Still, it’s a compelling issue to the people who are connected to these communities and the folks who report on them, like me. Held at the University City Science Center’s Quorum in Philadelphia, the event included Nicole Galli of Benesch and Yarmela Pavlovic of Hogan Lovells along with Vanessa Costa of Endo Pharmaceuticals.

Plan for a crisis. You will have one. Companies need to develop social media policies in order to be sufficiently prepared to respond when things happen. Comments can be picked up and spread so fast on the Internet that companies have a very short window to respond effectively. Three days later and it’s over. After three days a lot of companies would still be discussing how to handle it.

Don’t wait for the FDA. Although the U.S. Food and Drug Administration took a first step in publishing policy on off-label marketing for social media last year, it is not expected to come out with anything comprehensive anytime soon and may stick to piecemeal announcements about different aspects of social media.

Social media is not just Facebook and Twitter. It includes a wide range of interactivity like comments on an article or blog, or a pinned image on Pinterest.

Respect labor laws. One issue that no doubt sticks in employers’ collective craws is that all employees (even nonunion ones) are permitted to engage in discussions that fall under concerted activity — such as group discussions related to improving their wages and conditions — on social media sites free from punishment by the employer, according to Galli, adding:

“In certain contexts, an employee can say disparaging (but true) things about the employer online and the employer can’t stop them and can get in trouble under the labor laws if they try to. I can tell you, employers do not like this.”

Don’t use the Internet as a reference guide for policies. Galli cautioned against looking for policies on the Internet since many are updated frequently, which renders online versions out of date.

Be mindful of YouTube and Facebook. On the subject of marketing, the FDA takes a dim view of companies that accentuate the positive without adding the potential downsides of their drug, device or therapeutic. Pavlovic referenced several warning letters and other notices the FDA has issued that make note of YouTube video postings in the past year that tripped over the rule. Warner Chilcott (NASDAQ:WCRX) received an FDA notice of violation, (also known as an untitled letter) in connection with a YouTube video promoting the product Atelvia. “Although in those letters the referenced video was not the only violation, it is clear that the FDA is regularly monitoring YouTube activity,” Pavlovic said. The same holds true of Facebook and leads to warning letters for companies that are frequently not legitimate drugmakers who are promoting products the FDA classifies as a drug, but are not approved.

It’s not the content so much as the speed and duration. Social media postings, videos and comments can represent a catalog of legal issues that companies have faced for years. But now, those issues are intensified because companies need to respond faster, often much faster than in other circumstances. As Galli puts it:

“Trademark infringement, confidentiality breaches, harassment, discrimination, price-fixing, securities fraud, false advertising, can now come up on social media sites and it is worse because it is (1) in real time; (2) fast moving; (3) widespread/viral; (4) permanent and (5) often more public — whereas for a lot of these things one or more of those factors isn’t true.”

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