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How Healthcare Companies Should Conduct Social Media Activities (A Legal Advisor’s Perspective)
This is a guest post by Timothy Dunn, Legal Advisor to Healthcare Companies Doing Business in Canada. You can find Timothy on Twitter here, and here is his website. If you have any questions, or would like to discuss a particular matter, you can contact Timothy at firstname.lastname@example.org or (450) 951-1335.
How Healthcare Companies Should Conduct Social Media Activities
Healthcare companies should conduct SMA within the scope of legally acceptable risk, which takes into account all of the relevant sources of exposure. I will share some thoughts about my approach to legal review of SMA. While I believe it to be true as of the time of posting, this information should not be taken as legal advice. You should always consult with a lawyer to discuss the implications of specific SMA to your healthcare company.
Regarding the legal review of ‘speaking’ SMA, my practice is to perform a categorical analysis of the piece or project to determine which Regulations apply, then perform a qualitative analysis of the piece or project against the relevant Regulations to determine scope of the risk of exposure.
1) The first step in my categorical analysis is assessing whether the SMA is either informational or promotional in nature. A useful instrument in this analysis is Health Canada’s Distinction between Advertising & Other Activities.
2) Where products are involved, how are these categorized (prescription drugs, Class I medical device, natural health product, etc.) and which Regulations become relevant?
3) Next, I determine the intended audience of the SMA: healthcare professionals, patients, or the general public. This analysis will determine which Regulations apply, as each of these audiences is regulated differently. In the former two cases, are the strategy and tactics deployed necessary or sufficient to restrict access to the appropriate populations?
Only after I position the SMA within the above matrix do I begin to analyze its content. What restrictions do Regulations impose on acceptable condition-related or product-related representations? Because SMA is predominantly interactive, control of editorial content is directly correlated with risk management of exposure to non-compliance with Regulations; it is inversely correlated with communitarian and interactive notions which inform and influence SMA strategies and tactics. My practice is to educate brand managers and other marketing professionals about the scope of the risk, suggest strategies and tactics to mitigate or manage it, and leave the ultimate decision to the business people.
Turning now to the ‘listening’ or receiving of SMA messages from stakeholders, healthcare companies should be mindful of privacy law, personal health information law, and pharmacovigilence/adverse event reporting obligations. Again, my practice is to perform a categorical and qualitative analysis based on these five questions:
1) is there informed consent for the collection of all information being collected and all purposes for which it will be used?
2) Where will the information be stored, is this being disclosed to the stakeholder, and what are the regulatory implications for transmitting the information outside of the jurisdiction in which it was collected?
3) What safeguards are there to maintain the confidentiality of the information; are these necessary or sufficient?
5) Which legislative regime will apply to the collected information (privacy law, personal health information law, adverse event reporting law, other?)
Exercise extreme caution when the collected information about a specific product is publicly available.
The way in which healthcare companies engage stakeholders is changing from a didactic paradigm of information dissemination to an interlocutory paradigm which necessarily entails a relinquishing of control over information content. The reality is that healthcare companies need to use SMA in order to remain engaged and relevant to their stakeholders. Because SMA tactics and strategies are evolving faster than the Regulations, legal risk increases. Healthcare companies should consult closely with legal counsel who has expertise in the regulation of advertising and promotion of therapeutic products, at all stages of the development and execution of SMA, in order to effectively manage this necessary risk.