Online drug advertising & the regulatory challenge

Between the (minor!) bike accident , the kid’s birthday, and being out of town for a bit, blog posting has gone a bit by the wayside the past few weeks. However, something that’s been much on my mind lately, and which I’d like to discuss here, is drug advertising online.

I’ve written various posts before about DTCA – direct to consumer advertising of prescription drugs – which is legal in limited form in Canada, and in much greater form in the US. I think prescription drug promotion of all sorts is a big social justice issue, and that DTCA is a significant and oft-overlooked consumer health info issue that librarians should have on our radar. When we talk about the Pew research on online health info seeking, social media, and “e-patients,” we cannot forget that profit-motivated companies are as interested in our patients’ online information behaviour as we are, just for very different reasons.

The Canadian “freedom of expression” lawsuit on this matter has been indefinitely adjourned, but I’ve come to wonder if perhaps debating the merits and perils of television and magazine ads may be rather passé in light of the Internet’s growing centrality as an advertising medium. Maybe CanWest was not just throwing in the towel on a lawsuit that was destined for failure (b/c the FOE argument was pretty weak), but also strategically abandoning old media. Nah, actually, I think CanWest is still pretty wedded to old media, but the rest of us aren’t. And we are the target audience for DTCA.

Now, I know some people (lots of them) still watch TV on TV, even with all this digital conversion business. But will they in a decade? Not so sure. Hulu has been such a huge success in the US, spawning constant rushes of hordes of international viewers to one proxy setup after another in order to see the latest episode of their favourite shows. It’s only a matter of time before online TV is de rigueur in any region with decent bandwidth & reliable connectivity.

The unofficial rules for online drug advertising have, to this point, basically been an extension of the TV advertising regulations. It’s debatable whether this is appropriate or not. I’ll take on whether the Internet is more like TV or more like the telephone in a separate post (soon! I promise!), but I think we can all agree that it’s not *exactly* like TV.

Many online ads, for example, require some active selection on the part of the reader/viewer, and are not necessarily as time limited as TV ads (and thus able to provide fuller information). Typical online drug ads today appear as advertisements in the margins of a website, and attempt to entice the reader into clicking them to go to a website with fuller information on whatever the condition/drug may be.

In a somewhat impressive attempt to be proactive (?), the FDA (US drug regulator) held a couple days of public hearings last month on the topic of online drug advertising. The 5-page list of speakers (pdf) was heave on pharma and health tech investors, followed by representatives of online services both general and health-specific, ranging from Google to WebMD. So that pretty much covers the people who want to advertise, and those who want the money from said advertising. Of note, there were reps of specific social marketing units within pharmaceutical companies on the docket, so Pharma is well aware of the stakes here (e.g. Sanofi-Aventis has a rep, and then the Sanofi-Aventis social media working group had a rep as well). Unfortunately, I could pick out only a very few advocacy/public interest groups, such as the Consumers Union.

To backtrack a bit, this hearing didn’t come out of nowhere, although it was not terribly well publicized.Back in April, the FDA issued warnings to some 14 pharmaceutical companies over their “misleading” online advertising. At issue was failure to fully disclose risks, and these letters focused on search engine ads (aka “sponsored links” in some search engine displays).

November’s hearings, however, were broader in scope, touching on not just search engine advertising, but also ads on websites, and – perhaps most significantly – in social media. This is excellent news, as we know that social sites are an ideal location for what I called “embedded DTCA with a social environment created to reach vulnerable and isolated populations” in my post about the “patient support” site RareShare a year ago.

So what? Where is this going? What does the Internet mean for drug advertising and patient protection?
Well, there some very interesting threads to watch as this policy story unfolds:

1. The Internet doesn’t do super well with national borders. If laws on DTCA are different in different countries, do they have to appear differently based on site host location? IP address of the end user? How? DTCA on television has taken advantage of lack of political will to enforce existing laws to broadcast US drug ads across the Canadian border. Will the Internet do any better? (Personally, I am doubtful.)
2. The Internet, however, does allow for end-user participation on a scale unprecedented by other media. Some people have voiced optimism regarding the potential for commenting and annotation to temper, force transparency upon, and generally “culture jam” drug advertising. Google’s SideWiki has received a lot of attention in this regard, but it remains fairly unwieldy to use and market saturation is quite low.
3. The whole net neutrality debate applies here, and the way this debate influences our view of the Internet will influence the way we feel about things like online advertising. Is the Internet a media for entertainment or communications? Is it a utility, which should be neutral and allow for participation from all, or is it a medium for consumption? We would feel quite different about picking up the phone and hearing an ad than we do about a commercial break from a TV show.
4. Social media can really blur the line between non-profit advocacy and for-profit promotion in a nasty way. It’s one thing to regulate what can or must be said inside a little “ad” box in the margin of a website. It’s quite another to regulate embedded personalities within a social media site, who are planted there to promote certain products. I will be quite surprised if these hearings/this process even touches on this issue, but variations on hidden advertisements are a phenomenon that’s well-known in the blogging world, maybe less recognized in some other social media fora (Facebook, where everyone is supposedly using their “real name”?)

-Greyson

p.s. During composition of this post I cheked the CBC news online, and lo and behold there was an example of DTCA right on the site. So I snapped a screenshot, of course, to stick up here. This is an example of a currently-legal “disease awareness” ad for erectile dysfunction, from the Health News page of the cbc.ca:

‘Forgetting’ Part 2, or, it’s opposite: Data retention legislation in the US

Related to the themes of ‘forgetting’ I brought up in my first post are the recent policy discussions in the United States, the EU, and Canada about data retention legislation. Data retention refers to policies that mandate lengths of time that companies like Google and your internet service provider must keep your search and surf records before they are deleted. Mandatory data retention creates the opposite of forgetting: a scenario in which someone (powerful companies, the government) will always be able to find out what you have been doing online.

While both Microsoft and Google have recently agreed to the (eventual) deletion of your online search data, parties in the Bush White House and the the US Congress would like these companies to retain records of your online activity indefinitely. Fortunately, it does seem to be a hard political sell, and this problematic policy hasn’t made it to the floor of the US Congress yet. (The case is different in Europe; see Electronic Privacy Information Center, Data Retention http://www.epic.org/privacy/intl/data_retention.html)

Mandatory data retention policy is problematic in many ways. Retention bills frame the need for such surveillance measures around fighting online evils such as terrorism and child pornography. However, permanent surveillance of everyone’s online histories to track small numbers of offenders creates a costly trade-off. We have virtual identities and practices that intersect with our real-world selves (see blogging.) We use the internet to find information (that may be controversial), to express opinions (that may be controversial), or to communicate with others (who might be controversial). This sort of participation in public life has traditionally been encouraged by civic institutions such as libraries.

In fact, the professional ethical principles of librarians and information professionals (codified in statements such as the Code of Ethics of the American Library Association) generally converge upon the importance of intellectual freedom and protecting the privacy of information seekers. Information professionals not only support but protect privacy and confidentiality in information seeking and acquisition, a primary purpose of online activity. I believe that information professionals have an ethical obligation to resist mandated data preservation.

If the ethical arguments against such broad surveillance as data retention policy allows are not convincing, practical problems abound as well. For instance, implementation may not satisfy the intended purposes of tracking and catching those responsible for internet crimes. Tracking online activity via IP address has several technological flaws. Among these is the widespread use of wireless routers, which allow many people to share one IP address. Encryption services, virtual private networks (VPNs), and anonymizing services all exist specifically to mask a user’s IP address. If data retention can be avoided by the very criminal element it hopes to track, it may end up only surveilling the innocent or those without enough technology experience to avoid data retention measures.

Some further resources about the debate:

From the Center for Democracy & Technology:
Child Safety and Free Speech Issues in the 110th Congress. http://www.cdt.org/speech/20070215freespeechincongress.pdf
Libin, N., & Dempsey, J. Mandatory Data Retention – Invasive, Risky, Unnecessary, Ineffective. http://www.cdt.org/privacy/20060602retention.pdf

-Katie