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Social media pushes commercial speech boundaries


Social media usage has exploded in recent years. Twitter, the tip of the social media spear, said recently it now has 175 million registered users and that 95 million tweets are sent each day.

The question then arises: Is what all those people are tweeting (or e-mailing, or Facebooking) about entirely their own business? Are these private channels of communication covered by the First Amendment, or are these venues the cyberworld version of the proverbial crowded theater, in which yelling “Fire!” is not protected free speech?

A lot depends on the content and origin of the message. It is those questions that have put the issue on the radar screens at the Federal Trade Commission (FTC). And how FTC chooses to move forward on the issue will have big implications for the natural products industry.

Issues surrounding what's said about products and their intended uses first cropped up in the pharmaceutical arena. The modern trend of using marketing dollars to communicate directly with patients has spilled over into the social media realm, where e-mail lists, Twitter accounts and patient groups have been used to promote off-label uses for drugs. The hard-to-answer question is whether the content of these messages arose spontaneously, or whether people are being paid by manufacturers to post their testimonials.  FTC has issued guidelines about commercial speech as it relates to bloggers and celebrity endorsements.

“Once communication went from point to mass there was also an explosion of trying to reorder everything, and it challenged everyone’s ideas,” said Loren Israelsen, executive director of the United Natural Products Alliance. “What is free speech? What is commercial speech? I’m not sure where we end up because I think it’s evolving so fast that until we have a better idea of who is talking to whom we are not going to be able to figure out what the rules are around this.”

But in the anti-authoritarian world of social media, might some marketers challenge  FTC’s right to prevent them saying what they believe? Could possible FTC rules on social media usage be subject to a court challenge?

“That would seem inevitable to me,” Israelsen said. “I don’t think it’s ripe for the Supreme Court yet; that’s still a green banana. But I think at every level are people trying to figure out how to use it as a tool and how to protect yourself from it.”

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