Commentary

Kim Kardashian Updates Instagram Ad For Morning Sickness Drug

Responding to criticism by the Food and Drug Administration, pharmaceutical company Duchesnay and celebrity Kim Kardashian have updated her Instagram account by posting warnings about the anti-nausea drug Diclegis.

"I guess you saw the attention my last #morningsickness post received," Kardashian wrote on Instagram. "The FDA has told Duchesnay, Inc., that my last post about Diclegis ... was incomplete because it did not include any risk information or important limitations of use for Diclegis. A link to this information accompanied the post, but this didn’t meet FDA requirements."

The E! Network reality star went on to detail the drug's contraindications and side effects, including that it can cause drowsiness.

Earlier this summer, the pregnant celebrity told her 42.6 million Instagram followers that the drug improved her morning sickness symptoms. "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," she wrote.

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Kardashian added that she was "partnering" with Duchesnay -- but didn't explicitly state that she had been paid to advertise the drug.

The FDA took the position that the message ran afoul of the agency's long-established requirement that ads touting the benefit of drugs also disclose their risks and contraindications.

"By omitting the risks associated with Diclegis, the social media post misleadingly fails to provide material information about the consequences that may result from the use of the drug and suggests that it is safer than has been demonstrated," Robert Dean, Division Director of the FDA's Office of Prescription Drug Promotion, wrote in a warning letter to Duchesnay Executive Vice President Eric Gervais.

While the FDA's letter was addressed to the pharmaceutical company, the move raised questions about whether Kardashian herself could face any problems with regulators.

The FDA can only take action against drug companies, but the Federal Trade Commission potentially could accuse Kardashian of misrepresenting the drug in an ad, according to Linda Goldstein, an advertising attorney with the law firm Manatt, Phelps & Phillips.

Goldstein previously told MediaPost that Kardashian's statements about the drug's safety might have "overstated the science."

Also, the celebrity's language about "partnering" with Duchesnay might not make it clear that she's serving as a paid endorser, Goldstein said.

The FTC has brought several enforcement actions against companies that ran social media campaigns. In one recent case, the FTC dinged Deutsch LA for an ad campaign that involved asking employees to promote Sony's PlayStation Vita on Twitter. The posts, which ran in 2012 and carried the hashtag #gamechanger, allegedly didn't indicate they came from Deutsch employees. (Deutsch LA agreed to settle the charges by promising that it won't in the future misrepresent the features of handheld gaming consoles, and will disclose any material connections between an endorser of a game and the marketer.)

The agency hasn't yet targeted any individual bloggers (or Twitter or Instagram users) for promoting products on social media. Whether Kardashian will be the first remains to be seen.

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