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August 12th, 2015
OMG! Kim Kardashian Social Media Post Creates Headache for Drug Marketer
The Food and Drug Administration ("FDA") has sent a warning letter to the pharmaceutical company Duchesnay because of a recent Kim Kardashian social post endorsing the company's morning sickness drug, DICLEGIS.The regulator's action presents a teachable moment for all marketers attempting to leverage celebrity endorsements.
What happened? Kardashian, a spokesperson for the company, had posted information about her morning sickness and her use of DICLEGIS on her social channels:
"OMG. Have you heard about this? As you guys know my #morningsickness has been pretty bad. I tried changing things about my lifestyle, like my diet, but nothing helped, so I talked to my doctor. He prescribed me #Diclegis, and I felt a lot better and most importantly, it's been studied and there was no increased risk to the baby. I'm so excited and happy with my results that I'm partnering with Duchesnay USA to raise awareness about treating morning sickness. If you have morning sickness, be safe and sure to ask your doctor about the pill with the pregnant woman on it and find out more www.diclegis.com; www.DiclegisImportantSafetylnfo.com."
In the warning letter, the FDA told the drug company that Kardashian's post was false or misleading because it made efficacy claims for the drug, but failed to communicate any risk information, and omitted material facts. In other words, the post "misbranded" the drug and, therefore, violated applicable law. The FDA stated that "these violations are concerning from a public health perspective because they suggest that DICLEGIS is safer than has been demonstrated."
The FDA noted that the post omitted all risk information about the drug, as well as information about proper use. That the post included a link to the drug's safety information was insufficient. Accordingly, the FDA requested that the company submit "a comprehensive plan of action to disseminate truthful, non-misleading, and complete corrective messages about the issues discussed in [the] letter to the audience(s) that received the violative promotional materials." Whether Kardashian herself will re-post with updated and more complete information remains to be seen.
Why this matters
Advertisers regularly engage celebrities and influencers to use their social channels to raise awareness about issues relevant to those advertisers and to promote their products and services. In addition to the FDA, the Federal Trade Commission also requires that any claims marketers make in social channels - even if through the voice of a celebrity endorser - must be complete and well-supported. Advertisers are responsible for the claims made by their paid endorsers, and must ensure that these claims mirror the claims that the advertisers themselves could make.
If you have questions about celebrity endorsements or other advertising law issues, please contact Terri Seligman at (212) 826 5580 or tseligman@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.
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On October 3, 2022, the Securities and Exchange Commission (SEC) announced that it entered into a $1.26 million settlement with Kim Kardashian over her social media promotion of the EMAX token without disclosing payment she received from token issuer, EthereumMax. The matter provides important lessons for advertisers. Read more.
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“Made in the U.S.A.” Claims Continue to be Scrutinized
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June 4 2018
