2016

The U.S. Food and Drug Administration (“FDA”) regulates the use of social media to disseminate information about prescription drugs and medical devices. Our blog previously covered the social media guidance released by the FDA in 2014, and a sampling of Warning and Untitled Letters that the FDA has issued to drug manufacturers advertising on Twitter, Facebook, and Tumblr.

Our firm sister blog, Health Law Pulse, covered last year’s controversy surrounding Kim Kardashian’s Instagram post that endorsed the morning sickness drug Diclegis® without including relevant risk information in the text of her post. After the manufacturer of Diclegis® received an FDA Warning Letter, Kim posted a corrective ad stating the risk information associated with that drug.

On Thursday, December 15, 2016, President Obama signed into law H.R. 5111, now officially titled the “Consumer Review Fairness Act of 2016.” The substantive provisions of the bill, which we discussed in a previous post, are virtually unchanged, but the law’s text provides further details regarding enforcement by the Federal Trade Commission and the states.

One noteworthy enforcement feature of the law is a cross-reference to the Federal Trade Commission Act. A violation of the Consumer Review Fairness Act of 2016 by offering a form contract containing a provision described as void in the law is also a violation of 15 U.S.C. 45(a)(2), which essentially prohibits unfair or deceptive acts or practices.

In the few months leading up to the United States election, social media was flooded with articles with sensationalized titles and incendiary content. Many of these “news” stories were fake. They were written for the purpose of swaying public opinion or generating a profit from ad revenue and were often published by sham entities or news websites. Large, popular companies may be the next targets, so this post will describe a few actions companies could take.

Social media has changed how people and companies interact and has provided us with some technological innovations that have raised copyright issues. In an effort to keep our readers informed of some recent developments involving social media, we wanted to provide some background relating to some headlines combining social media, copyright, and blockchain, and we will provide some clarifications and explanations.

Service of process on a foreign defendant can be a major headache for U.S. plaintiffs, but social media is proving to be a creative solution when traditional methods have been demonstrated to fail.

We previously covered a New York federal court’s ruling that permitted the Federal Trade Commission to serve the Indian defendants, operating under the name PCcare, by email and Facebook. We also discussed a Kansas federal court’s ruling that denied service via Facebook as the sole means of service.

Since our last update, a federal trial court in Virginia has ruled in favor of allowing service by social media, adding to a growing trend in the U.S. federal courts.

Social media personalities who have tweeted, grammed, Vine’d and snapped their way to stardom have no doubt caught the attention of businesses large and small. Much like how professional athletes and other celebrities are paid to endorse products, businesses and retailers have increasingly turned to recognized social media personalities (often called “influencers”) to recommend their products. Although social media influencers can get paid significant sums of money for product placement and rave reviews, sometimes the relationship with the company is not readily apparent to the public. Where the endorsement is not based on genuine user experience, this can have a misleading and negative impact on consumers.

We have all seen the reviews of products or services that disgruntled consumers post on review sites such as Yelp. Lately, however, some consumers have faced lawsuits for violating “gag orders,” or non-disparagement clauses, found in agreements between businesses and consumers. These clauses restrict consumers’ ability to publish any negative criticism about their experiences and are often placed in the fine print of form contracts.  These agreements provide that, when the consumer posts a negative review, or even speaks negatively about the business’s products, services, or conduct, the business would have a cause of action against the consumer for breach of contract.

What is Artificial Intelligence?

Artificial intelligence (“AI”) or cognitive computing involves the use of computer program code to control machines to mimic cognitive functions, such as learning, classification, and problem solving. AI is a technical field of computer science and includes machine learning and natural language processing.