Technology: Facebook, food and the FDA

Food and beverage makers should consider FDA health claim policies when formulating social media strategies

Social media—including Facebook—has given food and beverage companies unprecedented opportunities for direct customer access and engagement. Powerful new analytic tools also let companies dig into social media conversations to identify brand advocates and get real-time measurements of the success of marketing efforts. Yet all these interactions across social media’s many platforms may create a risk of exposure under Food and Drug Administration (FDA) regulations if a discussion occurs regarding the effect on health of a particular food product or ingredient, even if the consumer is the one who first makes the claim.

FDA regulation of health claims

The FDA’s involvement in regulating what food companies may say about how their product or product ingredients impact health depends upon the specific claim made. By explicit decision, the FDA lets conventional food companies discuss how a nutrient or dietary ingredient affects a normal structure or function in humans without prior approval. For example a statement on a product containing milk that says "milk helps build strong bones" would not require prior approval.

But labeling that communicates how a food or food component can affect a disease or health-related condition receives closer FDA scrutiny and regulation. A claim that indicates how a food product or ingredient helps to prevent or treat some kind of health condition is deemed a health claim that must comply with specific regulatory guidelines and established scientific standards. For example, a statement that says how consuming milk can reduce the risk of osteoporosis would be considered a health claim because it connects an element in the food to the treatment or prevention of a particular condition or disease.

When food or beverage packaging makes a health claim outside of established standards, the FDA will often issue a Warning Letter to the food manufacturer. Warning Letters advise the manufacturer that, because of the health claim, the food associated with the claim now meets the definition of a drug under the Food, Drug and Cosmetic Act (FDCA). As a drug governed by the FDCA, the food cannot be legally marketed without an approved new drug application. FDA Warning Letters to food manufacturers regarding health claims have included statements made on product-specific websites because the FDA has said that it views a company website as labeling, not advertising.

The FDA and social media

The FDA has been slow to provide formal social media guidance. So far it has only issued a single, “draft guidance” mentioning social media. That 2011 publication limits its discussion of social media to issues surrounding unsolicited requests for information on off-label uses of prescription drugs and devices. (Extensive social media regulation would be required within two years of passage of the “Food and Drug Administration Safety and Innovation Act,” currently under consideration in Congress).

Nonetheless, as with websites, the FDA views a company’s social content as labeling and it has begun to actively monitor some social media platforms for unauthorized health claims—particularly in the area of nutritional supplements. Unlike conventional food products, nutritional supplements are subject to special regulatory procedures that dictate required disclaimers and responsibilities for any functional structure statements made regarding the supplement. Since 2011, the FDA has issued numerous Warning Letters to supplement manufacturers for content on their Facebook pages. Warnings have covered actions such as including a link, video or reference to a third-party article posted on a Facebook page or commenting on or ”liking” a consumer post that contains unauthorized health claim information. Scenarios discussed in the 2011 FDA “draft guidance” discussed similar responsibility for information disseminated over YouTube and Twitter.

Is food next?

The FDA’s willingness to treat social media content as labeling and its sophisticated penetration into social media channels should give conventional food manufacturers pause—especially as consumers continue to embrace foods that include ingredients claiming to offer additional health benefits. While prizing the connection and brand loyalty created by social media conversations, food manufacturers need to draw a line with respect to the affirmative actions they take when responding to consumers whose brand enthusiasm may also contain an authorized health claim.

Recognizing that the FDA views social communications in the same way it views website information—that is, as labeling, not advertising—is the first step. Then, food and beverage companies need to understand that the absence of specific guidance regarding particular social platforms has not limited the FDA’s willingness to issue Warning Letters for health claims made in social content communication. Given that environment, food companies can manage the health claim exposure social media creates by including consideration of FDA health claim policies in their own product promotion and social media strategies. That way, no matter if it’s a tweet, re-tweet, post or “like,” the enthusiasm customer engagement creates will be balanced by recognition of the regulations and risks surrounding claims about food and health.

 

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Thomas Mahlum

Thomas Mahlum is a trial attorney at Robins, Kaplan, Miller & Ciresi L.L.P. His experience includes complex business disputes involving contracts, intellectual property,...

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Contributing Author

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Melissa Goodman

Melissa Goodman is a trial attorney at Robins, Kaplan, Miller & Ciresi L.L.P. Her experience includes complex business disputes involving contracts, intellectual...

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