Today on the podcast we're talking about disclosures, disclaimers and conflicts of interest.
You might not realize the number of guidelines and requirements that pertain to your online activity.
I am a big believer in curating your online presence and making sure it demonstrates your highlight reel. It puts your professional best foot forward.
Having a strong online presence is important for:
- Professional branding and career growth.
- Growing a profitable side gig.
- Laying the groundwork for a leadership role or even a nonclinical physician career role.
- Establishing yourself as a thought leader.
Whatever you’re doing online with your website and social media – engaging in education, networking, thought leadership, even marketing and selling – it‘s very important to be sure that you are providing the right context online.
This is where disclosures and disclaimers come into play.
Last time, in Episode 13, we talked specifically about some key best practices for physicians on social media to stay out of trouble with their affiliated organizations, since all eyes are on us right now online because of COVID-19.
Today’s episode is more general and covers more ground for physicians entrepreneurs who use their online platforms to get paid, get clients, or grow their practices.
In This Episode of The Career Rx We’ll Discuss:
- What exactly are disclaimers, disclosures, and conflicts of interest – and how do they apply online?
- The 3 most important disclaimers for doctors online – for medical liability, side gigs, and affiliated organizations
- How to disclose financial relationships with companies and brands, on your website and on social media (Federal Trade Commission requirements).
- FDA additional disclosure rules for medical products (for you online influencers who are getting paid by pharmaceutical or device companies)
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TRANSCRIPT AND SHOW NOTES
Hey there friends! Welcome to The Career Prescription podcast (aka The Career Rx). I’m your host Marjorie Stiegler.
Today on the podcast we're talking about disclosures, disclaimers, and conflicts of interest.
The Federal Trade Commission (FTC) has a stake in this game. Depending upon your activities the Food and Drug Administration (FDA) may as well. Certainly, any organization you are affiliated with also has an opinion on how you conduct yourself online.
It’s therefore, really important to be sure that you have a full understanding of all of those contexts and that you're presenting yourself in an appropriate way.
I want you to feel like you can:
- Engage safely online.
- Be appropriate with your disclosures/disclaimers, plus manage potential conflicts of interest.
- Do a great job connecting with other people and putting your thought leadership forward so that you can advance your career online.
If you haven't already, check out my book, The Social Prescription.
This communicates how physicians can leverage online strategies to advance their professional goals and career, including professional goals that are patient-focused.
It’s on Amazon in paperback and via Kindle. It covers a complete strategy and platform specifics – intended for beginners and more advanced users alike.
So with that, let's transition into what kind of disclosures, disclaimers, and conflicts of interest you need to engage successfully and safely online as a physician.
Disclosures, Disclaimers and Conflicts of Interest
Remember – I'm not an attorney. You need to do your own due diligence.
I'm going to share some of the most important things I think you need to know. They might vary based on where you live and work. They might vary if the laws change. There may also be things that I won’t be discussing, so please do your own homework, and consider this a starting point.
How Disclaimers and Disclosures Apply To Conflicts of Interest
The first important thing is an overarching principle. Disclaimers and disclosures essentially apply to the concept of conflicts of interest.
What is a Conflict of Interest?
A conflict of interest indicates that you have some kind of financial or other tangible interests – a stake in the game about something that you're writing about or speaking about.
When there is a conflict of interest, you should always be transparent about it. I don't think a conflict of interest is inherently bad, unless there’s something unethical about it. It's just important that everyone be aware of any financial relationships.
For example, whenever I speak about my products, I’ll get paid if people purchase the book or sign up for my courses.
This is an obvious financial relationship. I wouldn’t call it a conflict of interest per se. I offer good products that provide value to others that help them achieve their goals. It is, however, still important for people to know that this is partly how I earn my living.
Conflicts of interest can be actual conflicts of interest, or they can just be perceived as a conflict of interest.
This is important as you consider your activities – how does what you're saying and doing appear through the lens of somebody else?
It's not necessarily whether or not you do benefit, but whether someone might think that you benefit.
If they think you benefit doesn't mean you have to take action. More on this later. However, the ‘real or perceived’ concept is a bigger view I want you to think about to determine whether to include a disclaimer or disclosure.
3 of the Most Important Disclaimers to Consider
These disclaimers should be communicated on your website and/or social media pages.
1. You Are Not Giving Medical Advice
If you are writing articles or engaging in long-form discussion, whether that's written or even video – you want to be very clear that you're not giving medical advice.
You're not giving medical advice online (unless you are actually engaged in a physician-patient relationship).
For example: If you are in a telemedicine practice doing a virtual consultation, that, of course, is the practice of medicine. This is subject to a completely separate set of requirements.
However, if you are blogging and putting out video content commentary, this is not medical advice, even if it's medical content. Instead, you'll want to say that your content is intended for general education only, not medical advice.
You should recommend that readers or listeners seek their individual care from their own physician.
If you're making medical recommendations (not to the patient but to your colleagues/other physicians), it's important that you communicate that it’s for general education only.
Keeping this in mind, you want to be careful about the way that you write. You can write about the benefits of physical activity or nutrition. You want to stay away from communicating a specific nutritional or exercise plan that you say works for everyone, or that you encourage your readers to try (without talking to their own physician).
What to Say In Your Disclaimer:
On your website write a simple sentence in the post that communicates:
- This information is intended as general medical education only
- Your specific situation may vary
- This is not medical advice
- Always check with your own physician
On social media platforms with fewer characters available, you can include a note that says ‘this is not medical advice.”
In other long-form content such as videos or podcasts, you want to communicate that you are not giving medical advice and all of the bullets above.
2. Earnings and Results from Physician Side Gigs
Many physicians and healthcare professionals are getting into physician side gigs. Many hope these side gigs will eventually replace their income. Other doctors have side gigs to satisfy their curiosity and need for creativity.
People are getting into consulting, online courses, coaching services, professional speaking, etc. These are the types of side gigs that can involve content on your website.
If you are selling coaching or consulting services, it's important to address whether or not there are specific results that are guaranteed. This is an important disclaimer.
This is part of your good customer service, and also protects your business.
My Personal Approach:
I don't make any specific guarantees that by taking one of my courses someone will earn a specific amount of money. This doesn't conflict with having a great refund policy.
I also take the approach that my refund policy ensures that their satisfaction is completely guaranteed. It can coexist, with the earnings and specific results.
Particular results depend heavily on student implementation, effort and business aptitude.
For Example: If I'm teaching people the business of paid professional, public speaking, and they aren't putting in the effort or taking the advice I'm giving them, or they don't have that baseline set of skills or aptitude as a speaker.
While it’s common to get paid 5, 10 or $20,000 per talk, this is not realistic if they aren't willing to implement the lessons. So, I can’t guarantee those results. But I do guarantee 100% satisfaction or a full refund.
What to Say In Your Disclaimer:
- You don't guarantee any particular results from your coaching/consulting, etc.
- Your own success may not be typical.
- Examples from your star students/clients may not be typical (if that’s the case)
So you'll want to be sure to let people know specifically what they can expect and whether or not there's any type of guarantee for specific results.
I personally offer a 30-day 100% money-back guarantee for those who aren’t satisfied with my courses. (Not a single student has ever taken me up on that offer and asked for a refund, so that’s a good thing!)
3. You Are Not Speaking On Behalf of an Organization
A third disclaimer that's really important is that you're not speaking on behalf of an organization unless you are an official spokesperson.
Unless you're acting as a formal spokesperson, in which case you should obviously identify herself as such, you need to follow your organization's social media policies.
Some organizations will want you to identify that you are an employee or affiliated with that organization and then to go on to say…
- My views are my own,
- My tweets are my own, or
- Posts/content are my own.
- “These views don't represent my employer.”
The main thing is following the institution’s social media policy.
- Do they want you to go ahead and acknowledge your relationship and then disclaim that you know you're speaking only for yourself?
- Or does the organization want you to say nothing at all about being employed or affiliated there? They may ask that you keep the organization's name out of your bio's, other materials, and simply don't make that connection at all.
It depends on the organization and their policy. So you’ve got to know what it is. While you will still say something along the lines of, “my views are my own,” the difference is whether or not you acknowledge your relationship with a particular organization.
This relates back to how we started talking about potential conflicts of interest.
Whether you acknowledge your relationship with those organizations or not is based on their social media policy.
It becomes relevant again if there's any perceived conflict of interest.
For Example: Let’s say you have a paid relationship with a medical device company or a pharmaceutical company.
Their social media policy says not to use social media to do any type of business posts.
You can’t use their name or say you're connected with them. They want you to keep all business out of social media.
If that's their policy, then you would not say that you're affiliated with them and you would keep their name out of your bio and your other materials.
Also, importantly you would not be posting and tweeting about business-related material (such as retweeting posts from that company) – as then you there would be a conflict of interest that was undisclosed.
This is where the ‘real or perceived’ conflict comes into play. Even if you aren’t being paid to share and amplify those posts, if you are paid by that company for a different activity, (say you’re on the company’s speaker’s bureau) – there is a reasonable perception that you have a conflict of interest or relationship that requires disclosure.
So hopefully that makes sense. If it doesn't, certainly drop me a note.
What to Say In Your Disclaimer:
Make sure that you say whether or not you're speaking on behalf of an organization.
Most importantly, make sure you know the organization’s policy about whether or not they want your affiliation to be clearly linked.
If they do not communicate this, you have to be doubly careful. Make sure you aren't sharing something thing that could be perceived as a conflict of interest with that business entity in which you do have a financial relationship.
“Disclosure” is revealing the compensation you receive from products or services that you recommend or mention on your website or social media platforms.
If you receive financial benefits (products, services or money) from companies when discussing their products/services, you must follow FTC guidelines.
You must communicate that you are being financially compensated in your blog post or social media post.
If you don’t follow these regulations you can get in trouble and receive big fines. So, it's not without consequence. Many violations of FTC guidance can result in legal action requiring you to give up any money you've earned. So keep that in mind.
Anytime you're posting anything that could be construed as an endorsement on behalf of a sponsoring advertiser or company, you have to say so.
- Free products
- Paid ads
- Affiliate links
Promoting products and services can be a really great way to augment your income, provided you truly believe in what you're promoting (this should go without saying, for ethical reasons).
Where could there be a conflict of interest?
If you are promoting a lot of things that you don't think are good products and you are getting paid to do so. This, of course, is unethical.
If on the other hand, you have products and services you love, you share with others and you happen to get a referral, this is a smart way to work. But you have to disclose.
The person who's hearing your recommendation or clicking through your link needs to have that context just so they're fully informed.
These guidelines apply even if you don't speak about the product, by the way.
Even if you just take a picture, i.e. a product placement, if your photo or video might convey that you approve of or recommend the product, that falls under FTC guidance as well.
Now, having said that, if you have no mechanism whatsoever for earning any type of affiliate income, you can gush all you want about any kind of products and services that you want.
It's not necessary to say you don't have a relationship with these products, but when you do have a financial relationship and you must disclose, even when you have just product placement.
This goes back to the ‘real or perceived’ concept. If there’s literally nothing at all – no way in which you benefit from or have a relationship with the company, you don’t have to say so. You can if you want, but you don’t have to. It’s when you do have one, but not specifically about your current activity. That’s where perceived conflict comes into play.
Here are a few myths around disclosures for financial compensation:
1. It's not sufficient to just mention the financial relationship in your bio and the footer of your website that says, I have some affiliate links throughout this website. This is not enough.
The disclosure needs to be prominent and proximate. The definition of prominent and proximate means it has to be easy to see and it has to be hard to miss.
- It should be at the top of a blog post, or right along with the first mention of the brand or product or link
- It can be on a photo, perhaps has an overlay of text
- The very beginning of a blog post or a video. It cannot be in the description.
Example: If you have a YouTube video that's 10 minutes long, do not bury your disclosure in the description that you post with the video. You can’t mention the relationship at the end of the video either – it’s got to be at the beginning.
How To Communicate Your Disclosure:
Including #ad or #sponsored post or #paidpost is acceptable if it's in a short form tweet.
However, it's not acceptable by the FTC if the hashtag is buried in the middle of 30 other hashtags at the bottom of your Instagram posts, for example.
That's not considered to be prominent or proximate.
The disclosure needs to be something that stands alone on its own line.
- In a blog post or video where there is no character limit, you should share full details of your disclosure.
- You can't say something ambiguous like, “Thanks to brand XYZ for this awesome product ABC”. It has to be clear if you are a paid customer or you've been given it for free to post a review.
If you're a paid customer and you're just saying that you love it, again, you're not under an obligation to disclose because you don't have a financial relationship.
You must disclose when you have a financial relationship, even if that financial benefit isn’t money, but is product or service for free or at a discount.
If you're in the business of making money via affiliate links, it is a requirement that you disclose. I also think this helps your affiliate business to be upfront with your disclosure. It may convince brands to work with you when they see evidence of your current brand relationships. This is the case especially if they also see engagement from your audience.
It may also increase trust from your readers/audience as a content expert or ‘professional’ reviewer.
FDA Additional Rules for Medical Products
The final thing I'll say before I sign off is the FDA has additional rules that govern the promotion of medical products including devices and pharmaceuticals.
If you have any relationships with that type of industry, you've must be sure you've done your homework. Know your responsibilities as well as the restrictions and guidelines.
There's a whole lot that has to be said about products that are regulated by the FDA.
When a medical claim is made, it has to be FDA approved. It must be alongside other information that is also FDA required to give people a full picture of risk, benefit, efficacy and safety.
This is a little bit outside the scope of this particular podcast. If you’re in a financial relationship with a medical device, biotech or pharma, you must disclose that. Particularly if you are earning money from talking about products, your disclosure will have to be very detailed.
How To Communicate Your Disclosure:
Work with the companies headquarters on the disclosure requirements. You can't just write your own – the FDA will not allow it.
If you do not disclose properly you can be fined and potentially have to give all your money back. These are risks that I think are not quite worth it.
I hope this podcast is really helpful to those of you who are entrepreneurial in spirit, have a physician side gig, been working on professional branding, or you've been building up your online presence.
I’ve shared some of your obligations online when it comes to conflicts of interest, disclaimers and disclosures. But, remember I'm not your attorney and you have to do your own due diligence.
Thanks for joining me on this episode of The Career Rx.
Please be sure to subscribe and leave me a review on Apple Podcast, Google Podcast or whatever podcast player you're using to listen today. Also, be sure to send me your questions so that I can answer them and give you a shout out on a future episode.
Bye for now,