BI's Facebook Game Syrum to be Launched "When It's Ready." Needs to Obey Privacy & FTC Laws First!

I wrote a review of Boehringer Ingelheim's (BI's) long-awaited -- but not yet available -- Facebook game, Syrum, in yesterday's post to Pharma Marketing Blog (see "Pharma & Fun, Not Oxymoronic? Here Comes Gamification!"). Today, I brought up the topic of pharma-sponsored "gamification" during the #hcsmeu chat. BI's John Pugh -- who is in charge of the Syrum project -- saw the "bat signal" that was raised when the subject of Syrum came up and he joined the conversation.

One question I asked during the chat was "@JohnPugh When is Syrum actually going to be launched? Hope not same schedule as FDA guidelines! :-)" to which John responded: "@pharmaguy Syrum will be launched when its ready, but I expect the first round of testing to be B4 the end of this year."

Oh, Oh! This sounds suspiciously like FDA's "promise" to come up with social media guidelines by the "end of the year" (ie, 2010).

So the timeline for the ACTUAL release of Syrum is sometime in 2012 (after 1st round of testing) -- maybe even ONE WHOLE YEAR after the game was announced on Facebook! Related to that, I posted this comment to the #hcsmeu chat: "Personally, I'm a little miffed at BI for promoting Syrum so far in advance of its actual launch date! All hype, no substance!"

How can BI justify announcing Syrum on Facebook (and at several industry conference presentations) a year or more before the game is actually available to be played? Hint: note the signup section at the bottom of the screen:

Of course, I signed up. I'm not sure how many other people also signed up, but is this BI's way of trial ballooning the concept? I mean, will the game be developed only if a certain number of people sign up?

John Pugh suggested that people who wish to beta test the game (me! me! pick me!) should use this form to sign up. I pointed out that the sign up form seems only for people who want to be notified when the game is launched ("Sign up below to be the first to know about the official launch or come back soon... the health of the world depends on it!").

After signing up, I received the following email message in my SPAM filter/box:

A "Syrum - Out of Office" message? Very odd! What's BI trying to do here? They are certainly not opening up to communicate with potential game players. I have NEVER received an "out-of-office" email from a pharma company! It shouts to me "We don't care very much about you." A pharma company should NEVER send an "out-of-office" reply! First of all such messages may end up ignored or, as in my case, get caught up in spam filters and never seen!

BI Ignores My Privacy Concerns and May Violate COPPA
Another point I made to John Pugh was that the Syrum site does not include a privacy policy or even a privacy statement! The "out-of-office" email message also does not include a link to a privacy statement, although there IS a link to an unsubscribe function/form.

The Syrum site also may violate US and other laws regarding Web sites that may be intended for or used by children under the age of 13 (eg, The Children's Online Privacy Protection Act (COPPA)). These laws do NOT allow collection of personally-identifiable information from children without the consent of parents. Since Syrum is a game site that John Pugh says is intended for "everyone," then it is also intended for kids.

I hope that BI will fix these problems as soon as it reads this post. Consider this my first beta test report!

Update (31 Oct 2011): I am happy to report that BI -- after reading this blog post -- has added this notice to the bottom of the Syrum Game promo screen: "Data collected form this web page will not be passed on to third parties. It will not be used for any other purpose than to contact you regarding your request or comment. All data will be deleted upon your request or as soon as they are no longer needed in order to contact you regarding your request or comment."

However, there is still the issue of collecting personally-identifiable information from children. BI needs, at least, to add a statement such as "This site is not intended for use by children under the age of 13."

Brand(o) Pharma Makes Offer Generic Companies Can't Refuse!

According to the  Federal Trade Commission (FTC), some brand pharmaceutical companies are imitating Marlon Brando's portrayal of the Godfather: They are making offers to potential competitors that they hope can't be refused.

 As reported today in the New York Times (see here) "some drug makers are using an indirect method to delay competition from low-cost generic products by promising not to introduce their own generic versions if a potential competitor delays its entry into the market.

“Instead of saying, ‘Here’s $200 million, go away,’ they’re saying they could penalize them $200 million, but they won’t, so go away,” said Jon Leibowitz, chairman of the FTC.

The FTC issued a final report (attached to this post) on authorized generic drugs that concludes when pharmaceutical companies introduce an authorized generic version of their brand-name drug, it can reduce both retail and wholesale drug prices. The report also found that authorized generics have a substantial effect on the revenues of competing generic firms. Over the longer term, by lowering expected profits for generic competitors, the introduction of an authorized generic could affect a generic drug company’s decision to challenge patents on branded drug products with low sales. However, the report concludes that in spite of this, patent challenges by generic competitors remain robust.

Finally, the report finds that some brand companies may have used agreements not to launch an authorized generic as a way to compensate would-be generic competitors for delaying entry into the market.

FDA Needs to Do a Better Job Regulating Food Labels, Says GAO

When it comes to false health claims made by food advertisers, the Federal Trade Commission (FTC) is the federal agency that is empowered to act (see, for example, "Kellogg Engages in Serial Advertising Misbehavior"). But the FDA has jurisdiction over the labelling, which is what is written on the box or container in which the food is delivered.

In a report, the Government Accounting Office (GAO) -- the investigative arm of Congress -- said "FDA Needs to Reassess Its Approach to Protecting Consumers from False or Misleading Claims." In fact, that is the name of the report, which you can find here.

Health claims made by food companies is a "a complex and challenging legal and regulatory" issue. There are several different kinds of health claims that FDA has defined, one of which is a "structure/function" claim. Here's how FDA defines a structure/function claim:

Structure/function claims describe the role of a nutrient or dietary ingredient intended to affect normal structure or function in humans, for example, "calcium builds strong bones." In addition, they may characterize the means by which a nutrient or dietary ingredient acts to maintain such structure or function, for example, "fiber maintains bowel regularity," or "antioxidants maintain cell integrity," or they may describe general well-being from consumption of a nutrient or dietary ingredient. Structure/function claims may also describe a benefit related to a nutrient deficiency disease (like vitamin C and scurvy), as long as the statement also tells how widespread such a disease is in the United States. The manufacturer is responsible for ensuring the accuracy and truthfulness of these claims; they are not pre-approved by FDA but must be truthful and not misleading.

The problem, says GAO, "FDA - unlike the Federal Trade Commission (FTC), which can require companies to submit any relevant evidence as part of an investigation of whether claims are substantiated - does not have the ability to compel companies to turn over their substantiation documents....FDA does not have express legal authority to compel the company to provide such information."

Not only is FDA's legal authority a problem, FDA has not provided guidance to industry on the evidence it needs to support such claims, says the GAO.

It's no wonder that the FTC has had more success quashing these claims than the FDA. One notable example of that is the action taken against Dannon for allegedly overstating the digestive, immunity and other health benefits related to Activia yogurt and DanActive dairy drinks. Dannon had to pay a fine of $21 million and Jamie Lee Curtis can no longer make "deceptive hypes for health and digestive benefits of Activia and DanActive,” Attorney General Richard Blumenthal said. “Dannon outrageously overplayed the health power of yogurt — making unscientific claims about promoting good digestion, preventing flu and enhancing health," said Blumenthal.



Those Activia commercials seemed pretty over-the-top to me and many comedians developed skits around the claims (see this Saturday Night Live excerpt on Hulu). But the typical consumer is confused, says the GAO. "Consumers find it difficult to distinguish among the many different types of claims on food labels, including health claims, qualified health claims, and structure/function claims." I'm pretty confused myself.

New Media, New Ways to Track You. Online Ad Technology is One Step Ahead of Lawmakers and Regulators

Citing privacy concerns, the Energy and Commerce Subcommittee on Commerce, Trade and Consumer Protection will hold a hearing tomorrow (December 2, 2010) on the feasibility of establishing a "Do Not Track" registry for the Internet.

Today, the Federal Trade Commission (FTC) will release its much-anticipated privacy report calling for a "do-not-track" tool for Web browsers (see "New Media Privacy Issues & Online Health Marketing" media advisory).

Also today, privacy wonks are meeting in Washington, DC at the National Press Club conference "The Future of Online Consumer Protections." Topics for discussion include:

• Protecting consumers while they surf the web: How to make a "Do Not Track Me" list work and other ideas.
• How costs can be cut with electronic medical records while still maintaining patient privacy.
• Is online health and drug marketing deceptive? Does it invade consumers' privacy?

One of the people presenting at that meeting is Jeff Chester, Founder and Executive Director of the Center for Digital Democracy (CDD). CDD and other privacy groups recently submitted a brief to the FTC citing "unfair and deceptive" online health and drug advertising practices (see, for example, "Center for Digital Democracy Challenges FTC to Reign In Online Pharma Marketing" and here).

Chester will be a guest on my Pharma Marketing Talk BlogTalkRadio show next Thursday and I'm currently hosting a survey on the issues (see below).

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New Media Tracking Technologies: Implications for Online Consumer Privacy
A conversation with Jeff Chester, Founder and Executive Director of the Center for Digital Democracy, about his organization's recently filed brief with the FTC requesting an "Investigation, Public Disclosure, Injunction, and Other Relief" regarding the array of sophisticated and non-transparent interactive marketing applications utilized by healthcare companies and the pharmaceutical industry to promote drugs online.

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While lawmakers and regulators are focused on "do not track" laws and web browser fixes, online advertising technology is already being "unleashed" that will make such laws, regulations, and fixes obsolete before the ink is dry. That's because these laws all focus on Web tracking cookies, which according to BlueCava CEO David Norris, "are a joke."

BlueCava and other companies are developing "digital fingerprint technology to identify how we use our computers, mobile devices and TV set-top boxes," according to this Wall Street Journal article. Here are some excerpts:

Device fingerprinting is a powerful emerging tool in this trade. It's "the next generation of online advertising," Mr. Norris says.

It might seem that one computer is pretty much like any other. Far from it: Each has a different clock setting, different fonts, different software and many other characteristics that make it unique. Every time a typical computer goes online, it broadcasts hundreds of such details as a calling card to other computers it communicates with. Tracking companies can use this data to uniquely identify computers, cellphones and other devices, and then build profiles of the people who use them.

Tracking companies are now embracing fingerprinting partly because it is much tougher to block than other common tools used to monitor people online, such as browser "cookies," tiny text files on a computer that can be deleted.

It's tough even for sophisticated Web surfers to tell if their gear is being fingerprinted. Even if people modify their machines—adding or deleting fonts, or updating software—fingerprinters often can still recognize them. There's not yet a way for people to delete fingerprints that have been collected. In short, fingerprinting is largely invisible, tough to fend off and semi-permanent.

Blue Cava also is seeking to use a controversial technique of matching online data about people with catalogs of offline information about them, such as property records, motor-vehicle registrations, income estimates and other details. It works like this: An individual logs into a website using a name or e-mail address.

The website shares those details with an offline-data company, which uses the email address or name to look up its files about the person.

The data company then strips out the user's name and passes BlueCava information from offline databases. BlueCava then adds those personal details to its profile of that device.

As a result, BlueCava expects to have extremely detailed profiles of devices that could be more useful to marketers. In its privacy policy, BlueCava says it plans to hang onto device data "for the foreseeable future."

Pretty scary, huh?

Is Your Digital Marketing Solution Mentioned in the CDD Brief? It Should Be!

After a day of cooking, I spent the remainder of the Thanksgiving Holiday weekend reading and highlighting sections of the 144-page brief that the Center for Digital Democracy (CDD) filed with the FTC on Thanksgiving eve (see "Center for Digital Democracy Challenges FTC to Reign In Online Pharma Marketing").

This document -- now in the public domain (find it here) -- is perhaps one of the BEST reviews of healthcare-related digital marketing techniques that I have ever seen! I recommend that ALL pharma marketers read it to learn which companies to contact to help them do a better job reaching online consumers and physicians.

There were several companies and products mentioned that I have not heard of. In that regard, this brief -- negative though it may be -- is a promotional boon for these companies, IMHO. You can't buy this kind of publicity and as a recent article in the New York Times proves, even negative publicity can help you get top listing in Google searches (see "A Bully Finds a Pulpit on the Web").

I compiled a list of more than two dozen innovative online marketing products/solutions mentioned in the CDD brief. My list includes the product name, company/site name, description, link to online information, and the paragraph number in the brief where you can find what the CDD has to say about it (download the list here).

If your company is NOT listed, I suggest that you (1) contact CDD and ask them to amend their brief to include your solution and/or (2) file your own brief with the FTC.

Of course, CDD does not view these solutions as "innovative." In fact the CDD thinks they are "unfair and deceptive":

"The companies named in this complaint, as well as others involved in real-time tracking and bidding -- including those that provide data optimization services for profiled targeting -- are engaged in unfair and deceptive practices."

I must admit that one or two of the services were a bit scary. QualityHealth's "Focus on Formulary" solution, for example, claims to be "sophisticated technology" that "links consumer marketing with brand formulary access." It designs "targeting messaging directly to millions of profiled consumers based on prescription coverage." CDD says: "Few consumers likely realize, however, that they have consented to become the subjects of a 'proprietary profiling technology' that “captures… valuable information across over 100 individual data points,” including 'consumers’ conditions and preferred treatments'; 'doctor relationships and plans to visit the doctor'; and 'insurance and formulary coverage.'"

ConditionMatch (offered by Good Health Media) claims to use “cutting edge behavioral targeting technology…[and] identifies groups with common sets of conditions/health-related characteristics by geographic region via insurance claims and individual ‘opt-in’ data.”

Both sound like they may have HIPAA privacy issues.

There is no lack of innovation regarding the names given to some of these solutions, such as:

• ActuatoRx Geo-Medical Targeting
• Acquire2Convert
• Healthographics
• Pluck
• Intent Targeting Advertising
• Target 2 Measure
• BuzzScape
• Social Operating System
• Bizo Targeting Platform
• Quantemo Engagement Index
• Subconscious Resonance Testing
• Evoked Response Potential

The CDD does not analyze whether or not the claims made by the companies it cites are credible or designed to hookwink gullible pharma marketers into purchasing their solutions. For example, are there any pharma marketers who are convinced that "Pluck," which is designed to engage consumers in conversations with brands, is a viable solution for Rx products?

Which leads me to wonder why the CDD focused exclusively on healthcare marketing as a target for its critique. Many of the marketing tactics cited by CDD probably were first developed for the consumer goods industry and then renamed/rebranded to appeal to healthcare marketers as well. The CDD has helped accelerate the process!

Center for Digital Democracy Challenges FTC to Reign In Online Pharma Marketing

Today, the Center for Digital Democracy filed a 144-page brief with the FTC challenging that agency to investigate its charges that Google, Microsoft, QualityHealth, WebMD, Yahoo, AOL, HealthCentral, Healthline, Everyday Health, and other health marketers -- including major pharmaceutical companies -- have "unleashed an arsenal of techniques to track and profile consumers" in an unfair and deceptive manner.

In the brief, which you can download here (huge pdf file), the CDD urges the FTC to "immediately conduct a thorough investigation and analysis of contemporary Digital Direct Marketing to Consumers of drug and health-related products and information. In addition to seeking the appropriate injunctions and other relief, we also urge the FTC to issue a report and recommendations designed to inform consumers and health professionals of the issues raised by interactive ads for medical products and services."

CDD has a long list of specific requests that can be found on the last few pages of the brief. I'll list a few of the more juicy ones here.

CDD says FTC should

• "Examine and analyze the data collection and usage practices of pharmaceutical advertisers to assess the extent of consumer information collected through websites, social networks, online video sites, and other interactive means. This should include personal information, IP addresses, cookies, flash cookies, Web bugs, tracking pixels, Web analytic tools, conversational and sentiment analysis [my emphasis], and any other 'data-mining' applications. We urge the FTC to resist suggestions that such data collection methods are appropriate because they can help identify risk-averse-related information."
• "Analyze how health-related social media marketing influences consumer behavior and attitudes on drug use and about medical conditions. The agency should examine social media marketing applications for the health market designed to foster 'viral' marketing approaches, including the targeting of specific consumers in order to influence their own network of relationships."
• "Investigate whether there is a violation of the FTC’s Endorsement guidelines (which the FTC has extended to the Internet) when advice is given to patients or consumers from seemingly independent health bloggers who do not disclose that they are paid or sponsored by pharmaceutical or other companies."
• "Obtain from pharmaceutical companies a list of the keywords used for paid search campaigns. The companies should also be required to inform the FTC of the techniques and applications they may use in so-called organic search to show up prominently in the results. U.S. consumers should be informed by the FTC of the implications of search marketing practices when they are looking for information and advice.
• "Work with the Food and Drug Administration and other appropriate agencies to develop a set of policies for regulating the use of behavioral targeting, data collection, and other digital techniques in the marketing of drugs and health-related products."

I have the "honor" of being quoted in paragraph 119.

Kellogg Engages in Serial Advertising Misbehavior

"Leading cereal maker Kellogg Company has agreed to new advertising restrictions to resolve a Federal Trade Commission (FTC) investigation into questionable immunity-related claims for Rice Krispies cereal," said FTC in a press release (see "FTC Investigation of Rice Krispies Ad Claims"). "This is the second time in the last year that the FTC has taken action against the company."

What's disturbing is the fact that Kellog went ahead with its questionable Rice Krispies campaign while being investigated by the FTC for other "cereal" health claims:

"We are concerned that while Kellogg was developing its questionable Rice Krispies campaign last year, it was simultaneously negotiating with the FTC to resolve earlier allegations that the company had deceptively marketed Frosted Mini-Wheats as improving children’s attentiveness," said FTC Commissioner Julie Brill and Chairman Jon Leibowitz in a concurring statement. "What is particularly disconcerting to us," said Brill and Leibowitz, "is that at the same time that Kellogg was making promises to the Commission regarding Frosted Mini-Wheats, the company was preparing to make problematic claims about Rice Krispies."

This makes Kellogg a "serial" misbehaving "cereal" advertiser, if you get my drift.

This is another example of "a trusted, long-established company with a presence in millions of American homes" (FTC Commissioner's words) that makes products we put into the mouths of our children "[shirking] its responsibility to do the right thing" (FTC Commissioner's words). The other company is Johnson & Johnson (see "Parallels Between BP and J&J").