About a month ago, Ms. Kardashian West posted to Instagram regarding her use of a prescription drug to control her morning sickness, including a picture of herself with said prescription drug and links to the manufacturer’s website. As Ms. Kardashian West is a celebrity with millions of followers who is often paid for her promotional ability, it was not an unusual post by any means (I assume, as I am not one of her followers). What is notable about this post is that it resurfaced this week as a hot news item after the United States Food and Drug Administration (FDA) publicized a warning letter to that drug’s manufacturer in response to said post, citing the Instagram posting for failing to contain the appropriate safety warnings.
This media blow up is a teachable moment for compliance programs. There are seven elements of a compliance program, as outlined by the Federal Sentencing Guidelines. Those seven elements speak to a
program that promotes ‘compliance with the law’, detects ‘criminal conduct’, and is within the purview of the organization’s ‘governing authority’; they provide a floor against which compliance programs of any industry can be benchmarked. My industry colleagues Donna Boehme, Adam Turteltaub, and Michael Volkov refer to this as ‘Compliance 1.0’ thinking. This social media promotional incident involving a celebrity figure highlights why the time has come for ‘Compliance 2.0’, which recognizes and pushes organizations to move beyond a minimal ‘compliance with the law’ perspective. Michael Volkov has some suggestions on his blog for enhancing the sentencing guidelines on the Corruption, Crime and Compliance Blog.
I believe that it does not take the threat of a bigger stick to make compliance professionals do the right thing. I’m certain that as a result of this published FDA warning letter, many of my compliance professional peers are clearing their calendars to plan a lunch-and-learn for their marketing colleagues on the dangers of paid social media endorsements by private individuals. The value that compliance programs provide is often hard to quantify in the abstract, especially as organizations seek to maximize spending in areas that present a return on investment for the bottom line and shareholders. The threat of the stick, regulatory fines and sanctions, is the counterweight to the carrot, that a culture of compliance and ethics needs support to grow. Simply put, laws (and internal policies) do not, cannot and should not have to speak to every single instance of behavior to define what is and is not acceptable professional conduct. It is the role of a compliance professional to be a resource for their organization and facilitate through the grey areas and translate ‘black letter law’ into black and white common sense.
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Angela Gamalski is a first year law student at Michigan State University College of Law. Angela can be reached at firstname.lastname@example.org.