Joan Lebow, Partner at EM3 Law, collaborated with Anu Dairkee, M.D. to author an article for the Journal of Health and Life Sciences Law, the official journal of the American Health Law Association (AHLA).
The article, titled ‘Big Pharma, Social Media, and the Regulatory Agency Game of Catch-up,’ sheds light on how social media affects patients’ medical choices within the framework of pharmaceutical promotion regulations. The article explores how pharmaceutical manufacturers can effectively fulfill their mission to safely inform consumers, considering both the technical constraints of social media and the prevailing standard of health literacy in our country.
Legal issues addressed in the article encompass a range of concerns, from ensuring that newly crafted laws do not infringe upon First Amendment rights, to safeguarding vulnerable consumers susceptible to the influence of “experts” advocating for specific products to treat illnesses. The article focuses on physician experts who may have financial interests or affiliations with pharmaceutical companies that leverage their status on social media. Physician influencers may boost sales of particular products and the FDA is conducting research on exactly this question. Assuming so, sociopolitical questions concern the value of increased sales in light of disclosure requirements applicable to the industry and ethical constraints on the physician who is paid to act as an influencer. Over and under these considerations is the critical question of how the pharmaceutical industry can and should use social media to inform the public about drug risks and benefits in a way that is comprehensible to the consumer.
The article’s primary focus lies on FTC and FDA regulatory regimes that impact physician influencers and the pharmaceutical companies that hire them, the potential consequences of their endorsements and their role in the broader physician-patient dynamic as it exists on numerous social media platforms.
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Additionally, they featured this article in a podcast where the authors delve into topics such as direct-to-consumer (DTC) advertising, the significance of health literacy in pharmaceutical advertising aimed at patients, the inequalities stemming from reduced health literacy, the pharmaceutical industry’s utilization of social media to expand the DTC advertising landscape, and the current state of regulations.
Tune in to the informative podcast here.
About the AuthorS
EM3’s Joan M. Lebow is a healthcare and commercial transactions lawyer. Her unique combination of corporate and private firm experience enables her to support clients as they face the challenges of regulatory compliance and risk management in their transactions and clinical delivery systems. Ms. Lebow represents clinical providers, organized medical staffs, IT consulting companies and software vendors which serve or support the hospitality, digital media, insurance, retail and manufacturing industries. She works collaboratively with clients often as part of a multidisciplinary team to close complex transactions. Her transactional and counseling practice is focused on healthcare providers and companies that support them, and includes compliance with reimbursement, data security and privacy and employment laws and regulations.
For more information, please contact Joan Lebow, Partner, at jlebow@em3law.com.
Anu Dairkee is a former physician who is focused on health equity and access issues. Anu Dairkee recently joined the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI) as a Clinical Fellow on the Health Care Access team. While in law school Anu worked on a variety of health law justice projects including one that educated providers about their rights regarding police questioning in hospital and healthcare settings. Additionally, Anu helped develop a policy recommendation on behalf of Medicaid AABD clients in Illinois which advocates for the elimination of the asset test requirement. Anu also coauthored a note and cohosted a podcast exploring the effects of social media on direct-to-consumer advertising in the pharmaceutical space on patient drug choice.
As a physician Anu focused on clinical research directed at improving hospital admission processes for hematology patients. Anu was also part of a team that worked on creating community-based mental health services for immigrant populations. Anu hopes to use the lessons she learned as a physician to better inform her practice as a health law attorney focused on improving access and equity in our health care system. Anu has an MD from the University of the West Indies, St. Augustine and a JD with a focus on health law and compliance studies from Loyola University Chicago School of Law.
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