Is Facebook Ghosting Pharma?

September 1, 2021By Dara Katcher Levy & Kalie E. Richardson

In what appears to be an “about face” in terms of Facebook’s historical wooing of big pharma (are we the only ones that immediately thought, “More Cowbell” when seeing that headline?  You can thank us for that 5 minute rabbit hole later), the social media giant has implemented yet another policy change affecting branded content for prescription drugs.   While it appears to have gone largely unnoticed by industry, Facebook updated its Branded Content Policies in May 2021, and now prohibits the promotion of “drugs and drug-related products, including illegal, prescription, or recreational drugs” via branded content.

Facebook defines branded content as “a creator or publisher’s content that features or is influenced by a business partner for an exchange of value, such as monetary payment or free gifts” and posts that are considered branded content begin with “Paid partnership with.”  A celebrity or influencer sponsored post on Instagram, which is owned by Facebook, endorsing a product is a common example of branded content.

As we understand it, this policy prohibits all branded content for drugs, regardless of whether or not that content contains the required safety information and branded content disclosure.  Branded content for OTC drugs, which we would have assumed fall into the category of “drugs,” however, is considered “restricted content” rather than the aforementioned “prohibited content.” Facebook’s restricted content policy for OTC drugs requires that the branded content “must comply with all applicable local laws, required or established industry codes, guidelines, licenses and approvals, and include age and country targeting criteria consistent with applicable local laws.”  There is no mention of prescription or OTC medical devices in Facebook’s current Branded Content Policies.

It is not clear whether or how Facebook is enforcing this policy, or whether such enforcement would apply to the poster, the sponsor, or both.  The new policy would represent a consequential change in Facebook advertising as branded content is a major marketing expenditure; celebrities and influencers with significant followings easily earn tens of thousands of dollars for a single post.  To the best of our knowledge, branded content for prescription drugs has continued to appear on Facebook and Instagram since the May 24 date of the policy.

We note that this policy change is separate from the new Facebook policy requiring Legitscript certification for certain Rx drug advertisers and pre-approval for prescription drugs advertisers that was announced last month and is covered in an earlier blog post.

Aside from specific platform policies around prescription drug advertising, sponsors and influencers should be mindful of FTC and FDA guidance covering sponsored social media posts.  The FTC Disclosures 101 for Social Media outlines influencer obligations to clearly disclose sponsored content.  And, while largely outdated, FDA has previously issued draft guidances on presenting risk and benefit information for prescription drugs and medical devices on social medial platforms with character space limitations and on correcting independent third-party misinformation on social media.

Given the resources pharmaceutical companies have put toward increasing social media presence with influencer marketing, we are curious about what, if any, changes are to come in this space – from FDA/FTC enforcement, new/different platform policies relating to sponsored content, or to pharma’s ultimate investment.

UPDATE:  As of September 1, 2021, Facebook has updated the Branded Content Policies we blogged about here. Early in the day on September 1, prohibited content included “Drugs and drug-related products, including illegal, prescription, or recreational drugs.”  The policy that went into effect later in the day removed the word “prescription” and currently prohibits “Drugs and drug-related products, including illegal or recreational drugs.”   In addition, Facebook updated the Business Partner Authorization section to include the term “Prescription Drugs,” suggesting that Rx drugs may continue to be promoted by influencers that have contracted with Facebook pre-authorized entities.   Reference to OTC drugs appears to have been removed from the restricted content section as well.  We will continue to monitor Facebook’s Branded Content Policies for changes that may affect Rx pharma and medical device industries.