As is well known, FDA's DDMAC has stubbornly refused to deliver any guidance for industry and for advertisers on what is and is not acceptable in communications on the Internet. Instead, the agency has repeatedly stated that it is not the medium, but the message that is the focus of their regulatory efforts and if you are doing something online that you could not do in print or broadcast, then you are tripping a regulatory wire. This stance, however, ignores the fact that the Internet presents a wealth of possibilities that are not addressed by print or broadcast, leaving industry and advertisers to guess as to the agency's intentions and resulting in policy being set reactively by warning letters rather than by proactive guidance.
But at the Federal Trade Commission (FTC) they have for a long time taken a different tack. In May of 2000, that agency issued "Dot Com Disclosures – Information About Online Advertising
" to the public, an 83-page document outlining do's and don'ts when engaging consumers online. The FTC has even developed a whole section outlining their position on disclosures and links and what kinds of disclosures are needed in banner ads when the disclosure might be too lengthy to fit. The FTC, almost a decade ago, made an attempt to address some of the questions that naturally arise in the online environment as a result of the burgeoning role of Internet ads.
Why in the world did they do such a thing?
Here is what they said – "Many of the general principles of advertising law apply to Internet ads, but new issues arise almost as fast as technology develops."
And then there is this from the introduction:
"The Internet combines aspects of print, television, and radio advertising in an interactive environment, and while it presents a new and fast-paced experience for consumers, it also raises interestingand occasionally complexquestions about the applicability of laws that were developed long before dot com became a household phrase."
Could you guys at FTC call DDMAC and tell them that?
Ironically one of the principle reasons people use the Internet is for health information. Why hasn't the FDA addressed Internet communications and healthcare?
Just as some policy makers have called from taking regulatory oversight of food from the FDA and giving it to a food oriented agency, we might also consider taking the oversight of advertising and communications away from the FDA and giving to an agency that actually oversees advertising and communications – say the FTC? Maybe then, we would have guidance for the 21st century.