After years of leveraging traditional marketing channels, the digital space can be intimidating for healthcare marketers, who have to navigate stricter compliance rules. Ann Chen, Sr. Counselor for Social Media and Digital at Abbott will provide examples of successful, compliant digital campaigns as well as a few examples of what to avoid. Nikki Bhargava Associate at Winston & Strawn will provide tips on legal considerations of healthcare marketing in the digital world.

1. Legal Considerations for
Digital Healthcare Marketing
Presented by:
Monique Bhargava, Winston & Strawn LLP
Ann Chen, Abbott – Senior Counsel, Social Media & Digital
Assets

2. Testimonials and Endorsements

3. FTC Guides Concerning
Testimonials and Endorsements

4. FTC Guides Apply
4
When BOTH are present Endorsement
Not the advertiser’s
opinion
Sponsored Advertising
Message
“Material connection”
with the advertiser
• Money
• Free Stuff
• Contest entries
• Employee
• Agency employee

5. FTC Examples of When Disclosure is
Required
5
Bloggers who get free
stuff
Employees who write
reviews for their
company’s products
“Street team”
members who get
points/prizes for
talking about products
Actors “cast” to appear
in ads as real
consumers
Real people who are
aware that they will be
in ad or be paid if they
say something positive
about product/service

6. 6
FTC Action Against Deutsch

7. FTC Settlement with Deutsch
• Deutsch Can’t:
• Misrepresent that an endorser of such product is an independent user or
ordinary consumer
• Endorsers must disclose, clearly and prominently, a material connection,
when one exists:
• #ad, #sponsored or “My client’s Playstation Vita is a #GameChanger”
• Deutsch Must:
• For the next five (5) years, all future account directors and creative directors
having direct and supervisory or managerial responsibilities, secure from
each such person a signed and dated statement acknowledging receipt of
the order
• Length of Order
• Terminates twenty (20) years from the date of its issuance
7

8. Training & Monitoring Required
8
Training
Info re
product/service
touted
Must give honest
opinion
Disclose connection
#ad
#sponsored
“My
company/client’s…”
Monitoring
Done by advertiser
Employees,
agencies, vendors,
influencers
Corrective Action
Correct Post
Takedown

9. FTC Endorsement Guides
9

10. FTC Brings Action Against Home
Security Company
• National family and safety expert known as “The Safety Mom”
appeared on media touting home monitoring system
• FTC believed:
• Company represented the person was independent;
• Failed to disclose connection; and
• Failed to correct misleading impression
• Investigation Included PR Agency
10

11. NY AG Fined Company for “Fake”
Testimonials
11
$300,000 Penalty
for Using “Fake”
Testimonial
11

12. Company Fined for Making Up
“Fake” Testimonials (cont.)
12
$300,000
Penalty
12
Having second thoughts? You won’t
be sorry, just go for it! I feel and
look great.

13. 13
What is Proper Disclosure?
#sponsored
#ad
#XZYemployee
#XZYadagency
#XYZcontestentry
State connection
“Clear and conspicuous”
and in conjunction with
claim or endorsement
In every post

14. What’s Not Ok?
• Not disclosing
• Disclosing in bio
• #spon
• #ee
• #genericstatement
• Posing as a consumer
14

15. FDA Regulation of Social Media

16. 16
FDA Guidance
Is the platform right for you?

17. 17
FDA Guidance – Correcting 3rd Party
Misinformation
Voluntary Correction

18. 18
Keeping Up With the FDA

19. 19
FDA Action - #CorrectiveAd

20. Right of Publicity Issues –
Interacting With Celebrities

21. Interacting With Celebrities
Not OK To…
• Use another’s name, image/likeness or persona;
• For a “commercial” purpose; and
• Without permission
21

22. Interacting With Celebrities
Is OK When…
• Obtained permission; or
• Use is not “commercial”; or
• Not using their name/likeness/persona
• Brand usage often doesn’t fall within these exceptions
• almost anything a brand does is likely to be viewed as commercial
• content which just evokes a celebrity could still be considered a “use”
22
Always consult your Legal team

23. Commercial Use
23
• Chuck Yeager sued CINGULAR WIRELESS for using his
name/achievement in a press release
• Press Release:
“…Nearly 60 years ago, the legendary test pilot Chuck
Yeager broke the sound barrier and achieved Mach 1.
Today, Cingular is breaking another kind of barrier with our
MACH 1 and MACH 2 mobile command centers, which will
enable us to respond rapidly to hurricanes and minimize
their impact on our customers….”
• Court Opinion: Given that press releases are promotional, the
use of plaintiff’s name and accomplishment qualifies as
“commercial speech”

24. Lawsuits By Celebrities
for Use of Name/Likeness

25. 25
Katherine Heigl Sues DUANE READE
for $6MM for Use of Name/Likeness
Photos/Images are Particularly Risky

26. Michael Jordan Sues JEWEL-OSCO
for $5MM for Use of Name/Likeness
26
“Congratulatory” Marketing has Risk

27. Bogart Estate Sues BURBERRY
Original Movie Shot
27
BURBERRY FACEBOOK Page
“Humphrey Bogart, wearing a BURBERRY
trench coat, in the final scene of Casablanca”
Use of Dead Celebrities Without Permission Is High Risk

28. Celebrity Social Media Interactions Which
Haven’t Resulted in Lawsuits

29. 29
Brand Asks Consumers for Their
Opinion

30. 30
Brand Responds After Celebrity
Tweets About Service

31. Trademark Issues – Interacting With Other
Brands/Events

32. Interacting With Other Brands/Events
Not OK to …
• Use another’s trademark, brand, logo or identification in a
manner:
• That is likely to cause consumer confusion as to source or origin
(“Trademark Infringement”); or
• That is likely to cause confusion as to affiliation, sponsorship or
endorsement (i.e., “false affiliation” or Section 43(a) violation)
32

33. Interacting With Other Brands/Events
Is OK When …
• The use of the other’s trademark isn’t likely to confuse
consumers as to source or origin; and
• E.g., will they think your products come from the third party?
• The use of the other’s trademark isn’t likely to confuse
consumers as to affiliation, sponsorship or endorsement
• E.g., will they think your brand and the third party are related?
• NOTE: Use by brand must be non-prominent and minimal to
avoid confusion
• E.g., avoid using distinctive styling and colors as opposed to a word
reference to a third party
33

34. Use of Another’s Trademark as a
Hashtag
• Risk is modified/mitigated when you:
• “Join the conversation,” rather than sell/promote a product
• Don’t suggest endorsement by the trademark owner
• Avoid creating your own hashtag using a registered trademark
• Unless sponsor has suggested or publicized use of the trademark as a hashtag
• Be part of the crowd of hashtag users
• Limit the number of tweets and the time period over which you use the mark
in the tweets
• Don’t use event trademark if your direct competitor has sponsored event
34

35. 35
Tweet Referencing and
Hashtagging Superbowl

36. 36
Medium Risk:
Planned Campaign Reaching Out
to Third-Party Brands

37. Copyright Issues – Interacting With Content
We Don’t Own

38. Interacting With Content We Don’t Own
Not OK to …
• Copy or publicly display or create derivative works of a person’s
original content (words, pictures, video, music, etc.); and
• Without permission (“Copyright Infringement”)
38

39. Interacting With Content We Don’t Own
OK When the Use …
• Permissible: to instead link to content (article, video, etc.) in a
generic way (e.g., without using third-party property)
• e.g., “Check Out This Article About Our Gum
on.wsj.com/1t4WDYE”
• Minimal interaction where the third party initiates the
conversation
• E.g., Replying to a consumer’s tweet or retweeting a consumer that
@tagged the brand
• Important to vet the content of the consumer’s posts before engaging
39

40. Top Tips for Regulated Products

41. Regulated Products or Devices
Solution: Location Targeting
• Sending content to an online user based on his or her
geographic location
41
Your product is regulated.
Social media is global.

42. Have the Right Resources
• Understand the policies of social media platforms
• Not all platforms may be suited to your industry or brand
• Ensure that you have a team capable of monitoring your social
channels
• Understand the legal requirements and risks to your advertising
content
• Train your team on how to respond or NOT to respond
42

43. Thank You!