Did I mention that NAD has a lot to say about influencer disclosures? A new NAD SWIFT case (Report #7489) spotlights an issue that is not directly addressed by the FTC Endorsement Guides and underscores NAD's very pro-disclosure perspective.
At issue here were a number of posts on the advertiser's LinkedIn account, challenged by a competitor. Both companies provide genomic testing used by physicians in evaluating and treating their breast cancer patients. The challenger alleged that the advertiser failed to disclose its material connection to the physician whose comments, interviews and articles it cited touting the advertiser's testing product to evaluate early stage breast cancer as better than challenger's testing product, and characterizing the advertiser's test as more accurate for Black women.
The challenger argued that the "close relationship" that existed between the advertiser and the physician necessitated a disclosure in the advertiser's posts citing the physician's comments. Specifically, the challenger cited the fact that the physician and the advertiser co-authored publications on breast cancer research; that the medical center with which the physician is affiliated participated in the advertiser's study as a principal investigator, collecting data on breast cancer patients; and, as a principal investigator, was invited to the advertiser's annual meeting to receive study updates. Notably, the challenger did not argue that the physician or the medical center received any monetary compensation for these activities (other than reimbursement of travel expenses and costs for data collection) and it not argue that the physician's opinions reflected anything other than her genuine informed professional opinions.
The advertiser countered the challenger's position, arguing that no material connection was required, given the audience for the posts: physicians aware of, and expecting, the typical relationships between active practitioners and researchers, on the one hand, and the providers of medical products and services, on the other. Moreover, the advertiser argued, the challenger neither contested the physician's professional judgment or expertise nor argued that she received any direct compensation for her recommendation. Indeed, the advertiser argued, the physician's "very significant personal and professional interest in giving her objective expert views" and the fact that "personal, non-economic, or economically trivial connections with a seller of a medical product would have no impact on her views regarding potentially life-or-death diagnoses and treatment options for patients," would not materially affect the weight or credibility of her statements and patients would not think that they would.
NAD, however, determined that a disclosure in the advertiser's posts about its relationship with the physician would be appropriate. It reasoned that although the physician was hardly a typical "influencer," or even a paid endorser, she did have a "closer than usual working relationship" with the advertiser and its personnel. Moreover, NAD determined, the potential audience for the posts were not just other physicians, but also potential patients, and that "[c]onsumers could reasonably expect that an endorser is more likely to speak of the advertiser in a more positive light when there is such a working relationship." Of particular significance, according to NAD, was the fact that the advertiser amplified the physician's statements in its own posts "closely associating the company with her positive statements in marketing generated by the company."
This Decision presented an unusual set of facts, ones very specific to the medical field. Nonetheless, it's a significant case in that it reflects NAD's thinking that it's almost always better, indeed necessary, to be transparent about relationships – of all kinds – between the advertiser and those whose words it wants to amplify. Even where the likelihood of bias is small, the consumer/patient/reader, has the right to know that it may exist. And factors other than money can create that bias. So, to reiterate what has been repeatedly said by regulators, and self-regulators, when in doubt, disclose.
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