FDA Cracks Down on Companies Using Search Engine Promotion Tactics

The US Food and Drug Administration (FDA) and Federal Trade Commission (FTC) are cracking down on three alleged marketers of unproven Ebola treatments by using an unusual tactic: Cracking down on their use of search engine marketing tactics.

Background

In Warning Letters issued on 24 November 2014, FDA and FTC chided three companies for the improper use of "metatags"—a type of machine-readable language intended to be used by search engines.

For example, if a website wanted to tell a search engine like Google that it was about "cancer," it would likely include the metatags "cancer" or "oncology" in its websites' code.

For more on how metatags work, check out this Google webpage.

Only in the last few years has FDA begun to track how companies use metatags in their advertising.

FDA's first reported warning to a company over its use of metatags was in 2008, when it warned an Alabama marketer of nutritional products that its use of more than a dozen cancer-related metatags was improper and "supplemented" other unapproved claims made by the company.

FDA then acted again in February 2013, when it sent a Warning Letter to Medical Doctors Research, a Florida-based dietary supplements company whose website allowed users to search by keyword.

"Typing the key word 'cancer' or 'diabetes' into MDR's product search field located on its website" brings up a number of products, FDA observed. Because those products are associated with that particular search term, the company is thus "implying that its products are intended for use in the diagnosis, cure, mitigation, treatment or prevention of such diseases," FDA said.

As Focus noted at the time, FDA's standard of an "implied" claim seemed to be the standard by which it would judge companies over their use of metatags in the future.

Sure enough, in July 2013 FDA sent its third letter over the improper use of metatags, this time to a California-based company whose unapproved products were associated with several metatags, including "cancer," cancer therapy," "natural cholesterol cure" and "diabetes." As with FDA's 2008 letter, agency regulators said these improper metatags "supplemented" other unapproved claims made by the company.

Since then, FDA has sent at least three other Warning Letters (1) (2) (3) to companies over their use of metatags.

New Metatag Warnings

Now, three additional companies have found themselves in the sights of FDA and its partner in advertising regulation, the FTC.

The record-setting three simultaneous Warning Letters for the subject differ in wording, but all express the same point: Stop using metatags to imply your product is safer or more effective than has been proved.

"To make or exaggerate such claims, whether directly or indirectly, through the use of a product name, website name, metatags, or other means, without rigorous scientific evidence sufficient to substantiate the claims, violates the Federal Trade Commission Act," FTC and FDA wrote in their letters to Ebola-C and LifeSilver.

Neither company, however, was explicitly accused of marketing its products using improper metatags. However, FDA said it took issue with the name of Ebola-C, which might influence search engine results.

That wasn't the case for the Florida-based online retailer Bodyhealth, which was accused by federal regulators of marketing unapproved products meant to protect patients from the Ebola virus using the metatag keywords "ebola," "ebola virus" and "ebola scare."

As with earlier letters, FDA said the metatags "supplemented" the company's other improper claims.

All three companies were ordered to immediately cease their alleged violations of federal law and reply to federal regulators within 15 days of receiving their respective Warning Letters.

Ebola-C, LifeSilver, Bodyhealth