FDA Pays Closer Attention to How Food and Dietary Supplement Companies Promote Their Products on Social Media
As consumers spend more time online during COVID-19, FDA has increased its oversight of product claims made through testimonials, customer reviews, and blog posts posted to company social media accounts and websites, as those may signal a company’s intent to communicate information about its products. In particular, FDA has been concerned about products that claim to treat COVID-19 or products that make mental health claims.
FDA has sent out warning letters to manufacturers that make claims on social media, whether made directly by the company or endorsed by the company through a retweet on Twitter or a “like” on Facebook. For example, on May 4, 2020, FDA sent a warning letter to Honey Colony LLC where it cited social media posts and retweets to claims that the company’s products could treat COVID-19. In the letter, FDA noted that it reviewed the company’s Twitter and Instagram pages because the company used these sites to direct customers to buy products on the company’s website.
By way of background, FDA has viewed “retweets” or “likes” as company endorsement, as FDA considers social media posts and claims as part of a product’s labeling. Under the Food, Drug and Cosmetic Act, labeling is defined as “written, printed or graphic material accompanying a product.” The Agency has interpreted this to include infomercials, website, brochures, and social media as an extension of labeling; however, some argue that FDA has no jurisdiction over social media. Instead, some argue that social media falls under the Federal Trade Commission’s (FTC) jurisdiction, as FTC regulates advertising. We will continue to monitor any developments.