We're getting into a busy part of the year for medical meetings, and with it comes an increase in the level of public discussion of innovations in medicine and drug therapy. By the time the year ends with ASH in December, likely millions of social media posts will have been authored and shared announcing or discussing the results of a clinical trial or an intriguing meeting poster. We will also likely look back at 2018 as the year physician thought leaders joined the discussion by actively posting on Social Media. But with new voices also come new risks, which will ultimately be borne by enterprise pharmaceutical companies.
Conflicts of interest are at the heart of this new, and likely soon to be expensive, risk. When a pharma or life sciences company pays for a doctor's service -- such as, consulting, speaking, investigating -- it's generally understood that the transaction creates a conflict of interest for the doctor. And where there's a conflict, it must be disclosed, a lesson driven home for Pharma by the FDA enforcement action against drugmaker Duchesnay for Kim Kardashian's "Morning Sickness" Instagram post. In hindsight, Duchesnay's error seems obvious, and all the more so because Kardashian is not a medical professional.
According to a Lancet study, proper conflict disclosures are not given 98% of the time.
But, let's consider an example: Thought Leader "Dr. Jill" is a paid consultant for pharmaceutical company "Juvenox." When Juvenox releases trial results, Dr. Jill tweets about the results, too. This is tweet is completely allowed -- however, Dr. Jill must disclose their conflict by incorporating #sponsored, #ad, or some other equivalent notation in her post.
A Thought Leader posting on social and including a disclosure such as #sponsored seems easy enough, and yet it doesn't happen. In fact it doesn't happen 98% of the time, according to a study published in the Lancet. That means for every 50 posts that would require a disclosure, only one was made. It's not clear if this behavior is the result of an oversight, overconfidence, or lack of awareness. Either way, the failure to disclose a conflict constitutes a violation of Section 5 of the FTC policy governing endorsements, and that's a bad thing for pharmaceutical and life science companies.
According to an official at the FTC, the company at the source of the conflict would be considered a responsible party and therefore potentially liable. Why go after a doctor when there's a company with deep pockets who "created" the problem in the first place?
Pharmaceutical companies which have many paid physician relationships, all of which are publicly discoverable, need to consider the following questions:
When a new fee for service is executed with a Thought Leader, does it explicitly include instructions to disclose?
Is social media cited as an example communication medium?
Does a company use any means to demonstrate a best effort at enforcing disclosure through some kind of monitoring of a Thought Leader's social media activity?
When a disclosure is not made, is there a process to follow which includes a remediation audit trail?
Based on the data, the answer to all three questions above is "no" for most companies. It's essential to enter into a contractual framework as soon as possible and to implement a monitoring scheme by working with a company like SafeGuard Cyber which can monitor for risks and enable a company to take immediate action to remediate their exposure.
July 3, 2020
July 3, 2020