Okay…today’s post is a bit of a rant, but I think it’ll include some practical, rationale advice that will help you too. As you can tell by the featured image for this post, I find myself out of ideas on how to explain my point in a calm, bullet-pointed way, so I’m going with the rant approach. I’d like to thank a number of you for both adding clarity to my thoughts and for being the very inspiration behind this post (you each know who you are).

What am I so annoyed at?

Conservatism.

Not the political ideology…the approach to marketing and specifically legal and regulatory concerns. To be sure, I’ve been one of the biggest defenders of the legal and regulatory teams at various companies. It’s not an easy job. You’ve got people like me telling you that you’re crazy and bashing their skulls against your walls when you won’t let them do something we we’d like. But at the same time, you save us from ourselves sometimes. As one of my favorite regulatory people once said, “I’m not telling you that you can’t do it, DDMAC [i.e., the FDA] is telling you that you can’t do it.” Substitute your own industry’s watchdog group in that quote if you’d like.

That somehow managed to get me off the ledge a few times and made me redirect my ire to more appropriate targets. However, after working with many, many companies over the past couple of years, I’ve realized one thing: it isn’t always DDMAC after all. Certainly it is sometimes, but other times, perhaps more times, it’s us. We’re not really mad that the FDA is preventing us from doing something, we’re mad that our own company won’t. Again, many of these rules exist to protect the company and make a lot of sense. I get that and I’m not advocating for anarchy, but I am advocating for a bit of common sense (perhaps I should have used a picture of Thomas Paine’s essay instead of the Sanity picture…nah).

The one “rule” that is making me crazy lately deals with the concept and interpretation of “sponsorship.” Allow me to explain what I mean by this. This might be something like when a company pays to have their content included on a website in something like a special information section. WebMD has a number of these. The regulatory challenge is that since the company is paying for the placement of this content, even though they don’t control the site in any other way (e.g., WebMD), the company is, of course, still responsible for the content itself. That is, they can’t include wildly off-label or inaccurate information simply because it’s not on their own website (here’s an example of one of these pages). Got that…makes total sense.

Here’s where I get annoyed…someone along the way has taken this regulation WAY too far. It seems that everything is treated as a “sponsorship” and what is in the control of the company and what it is liable for has been absurdly expanded. It’s no longer just sponsored “sections” or pages, it’s now ads as well. Allow me to demonstrate.

Rather than have a sponsored section on WebMD, you place a banner ad on WebMD. Okay. No problem, right? Wrong.

The new regulatory concern these days is figuring out what page the ad is placed on and what content surrounds it. Similarly, for the sponsored page, what other content, but that is not controlled by the company, is included on the page? The rationale?

Here’s an almost direct quote that I heard last week: “If we placed and paid to have something on the site, then we’re responsible for whatever is around it even if we have no control whatsoever over what’s around it.”

Seriously?

I’ve heard this from five different companies in the past two weeks. It’s a trend.

It’s leading to some behavior I find odd and unnecessary. For example, one company has removed their Facebook page because they were concerned about the ads (that Facebook controls) being placed next to their page’s content. What? The rationale from the legal and regulatory teams is that the company is somehow responsible for the content of those ads and the ads could expand the product’s claims and….

I don’t know what came after that…my ears stopped working, but I think you can fill in the blanks. I understand not wanting to have your ad next to an article bashing your product. That’s another story. That’s not desirable certainly, but it’s also not a violation of any laws.

So, let’s look at this rationally. First, this phenomenon appears to be especially acute on any site that you could remotely categorize as “social media.” That is, the rules seem a bit more lax when we’re not talking about Facebook. Social media always seems to make people panic. This tends to create a few interesting double standards. We’ll come back to that in a minute.

First, I want to share a perfect analogy that explains why all of this is so crazy. It comes from Peter Pitts, a former Associate Commissioner at the FDA and current partner at PR firm, Porter Novelli. I’d encourage you to read his entire commentary found in this white paper, but here’s the part I loved:

“…what does “sponsored mean? Let’s do a brief thought experiment. Consider a televised PGA tour event. When a product logo for an erectile dysfunction medicine appears on the screen and the announcer intones, “This portion of the Masters is sponsored by DRUG NAME HERE,” nobody out there in the viewing audience takes that to mean the “sponsor” has chosen the speed of the greens, the height of the rough or the pairing of golfers in the tournament. But say “sponsored” on a social media site and watch the sparks fly at internal regulatory review.”

Question for all of you: does that one simple statement make all of this debate about what you are responsible for seem a bit ridiculous all of a sudden? It did for me. It points out a perfectly created double standard that keeps social media as a pariah and “traditional” channels on the whitelist. Allow me to elaborate.

First, from Peter’s analogy, it’s okay if we “sponsor” a sporting event (or Race for the Cure or a NASCAR) and it doesn’t matter what appears next to our sponsorship. We don’t control, as Peter said, the pairings of golfers. Everyone’s fine with that. No one would assume otherwise because assuming otherwise would be insane.

But there’s more…

We don’t worry about what commercial follows ours on TV or what the news story leads into our commercial during the evening news.

We don’t care what ads appear above or below ours or what results appear on the same page as our paid Google AdWords.

We don’t think about what billboard is next to ours or what buildings it is near.

We don’t agonize over which stories are printed next to our ads in a magazine.

We don’t fret about which ads show up next to (or as a pre-roll to) our YouTube videos or channels. For example, here’s one of J&J’s videos (see red boxes):

I didn’t even bother highlighting the “Promoted Video” right under AOL’s ad.

So, how come regulatory and legal folks seem to be fine when we’re talking about TV, billboards, print, YouTube, Google, and yet worry about Facebook and some other places?

The FDA has never (read that last word again) told anyone that they are responsible for content they don’t control. So, if you place an ad or sponsor a section of a website, you should only need to worry about what you can control. You can control the content of what you give to the website to publish. That’s it. Of course, if you actually control more than that, then you’ve got a different issue. But you don’t control what ads show up next to your page on Facebook, so you’re not responsible for worrying about whether or not they cause your content to be in violation (side note: Facebook can actually turn off those ads in some cases, contact me if you need help).

Some of you might be saying that there’s a distinction between placing an ad (like a banner) and having a sponsored section. No way. You create the content for both and you dictate where each appears. For the sponsored section, you know where it’s going to go on the third party site (e.g., where on WebMD). For banner ads, you should know every single place where they show up. If not, talk with your media buying agency and get that info from them now. In each case, you created the content and helped decide on the placement. What you don’t get to decide is everything else that appears around it. Not the search results next to your Google AdWords, not the billboard under yours, not the TV commercial that follows your…none of these. Since you don’t control this why do you feel responsible? Why do you think that the FDA is going to come down on you? Show me one example and I’ll leave you alone.

We call these “ghost rules” around our office and they only do one thing really well: kill good thinking and innovation.

Rant over…thanks.