Forget Instagram influencers, fashion brands, and magazine editors for a moment. Your doctor might be running afoul of federal law when it comes to their social media posts … or more specifically, the endorsements they are making in social media posts. Ahead of this month’s launch of Jeuveau, a new wrinkle-smoothing injection market, Newport Beach, California-based company Evolus flew “top plastic surgeons and cosmetic dermatologists” to Cancun, put them up in the 5-star beachfront Ritz-Carlton, and in between meetings, treated them to lazy poolside drinks, lavish dinners, and gifts. (Yes, that sounds a lot like how it works for editors, critics, clients, celebrities, and influencers when brands stage lavish, on-location runway shows.)
Not merely a vacation, the Evolus-organized trip was characterized as an “advisory board meeting” ahead of the debut of Jeuveau – or “newtox,” as the Food and Drug Administration-approved neurotoxin has been coined by the company – which is set to compete with Botox in the $1 billion-plus wrinkle-reducing injection market. “More than a dozen top doctors” – from New York to Beverly Hills – “gushed about the event on social media, using the company’s preferred hashtag, #newtox, [and] without disclosing that Evolus had paid for their trips,” the New York Times has reported.
Without proper disclosure language indicating their “material connection” to Evolus (i.e., that the company had footed the bill for the weekend) in connection with such social media coverage, these endorsement posts almost certainly run afoul of the guidelines set forth by the Federal Trade Commission (“FTC”).
The U.S. government entity tasked with promoting consumer protection requires that endorsers “clearly and conspicuously” disclose any connections with a company or “between an endorser and any promoted product or service.” According to the FTC, consumers have the right to enjoy access to “information they need to make informed [purchasing] choices,” such as whether there was an exchange of compensation (either by way of money or other perks, such as free trips) that could impact the message being put forth by an endorser.
Evolus’ vice president of corporate communications, Crystal Muilenburg says that the weekend falls in line with the company’s “modern approach” to launching the Jeuveau, which is “highly focused on digital and social media.” While at least some of the doctors in attendance were paid for their expert opinions in connection with the drug, in accordance with the FTC’s endorsement guidelines, Muilenburg says, “There is no connection between the compensation paid [to the doctors] for separate advisory services and [the doctors’] independent [social media] content.”
That might be true, but the social media posts still require disclosures because of their connection with Evolus, which sponsored the weekend, including the doctors’ travel and accommodations.
Meanwhile, a spokesman for Evolus told the Times that the company did not believe it was violating any FTC rules and noted that the “doctors were compensated only for their expert medical advice.”
The doctors willing to speak to the Times uniformly noted that their posts from the weekend were not meant to be endorsements, and that their expert opinions of the drug will not be clouded by the upscale getaway. It is worth noting that regardless of the intent of the company and the doctors, the FTC has been firm in asserting that regardless of intent by the posting party, “an endorsement means any advertising message … that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser.”
So, chances are, the doctors’ promotions of the frown-line erasing product could be viewed as endorsements, and as the FTC has stated in the past, simply saying “Thanks,” as at least a few of the doctors’ posts did, does not rise to the level of required disclosure.
The advertising and promotion of medical products is not only policed by the FTC, however. The FDA also oversees advertising related to prescription drugs and certain medical devices, and requires that endorsers and advertisers must make note in all drug-related marketing of: 1) at least one approved use of the subject drug; 2) the generic name of the drug; and 3) all of the risks associated with using the drug (certain circumstances only require the most important risks).
Beyond the legally problematic nature of the disclosure-less endorsements by doctors, the luxurious weekend “carried echoes of an earlier, anything-goes era of pharmaceutical marketing that the industry largely abandoned after a series of scandals and billion-dollar fines,” according to the Times. “Most companies now say they follow an industry code that prohibits extravagant trips, ‘recreation or entertainment’ and the distribution of gifts for personal use.”
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