So, let's establish one thing: I wholly agree with with the Prescription Project that Medtronic, Abbott and Stryker are out of line if they put TV-style ads on YouTube that wouldn't meet legal standards for TV advertising. The question is whether the FDA--or anybody else--will get around anytime soon to regulating this kind of back-door Internet approach. Unfortunately, I'd argue that the answer is almost certainly "no."
The thing is, the FDA hardly seems capable of keeping a lid on existing direct-to-consumer advertising channels (TV and print), even though a fair number of critics believe with some justification that the whole DTC approach may be damaging. Ask the agency, by nature understaffed and hidebound, to get up to speed on YouTube, Facebook and other web channels for getting messages across, and you might as well be asking your grandmother.
Do I think they FDA will address Internet communications--and comprehensively--sometime in the future? Yes. But my gut is that it could be years before really effective web regulation gets drafted and takes hold.
Here's a thought. What if the incoming Obama administration were to take the position (if it's defensible legally) that stuff on the web is commerce, and that the FTC is the proper agency for supervising such content on YouTube and the like? The FDA would still have control of the medical aspects of the content, but the FTC would handle appropriateness of distribution. This of course would require rulemaking that establishes such distribution limits, but it can be done. And my perception of the FDA is that it's much better configured to deal with the web.
The truth is, the web is too tempting a target to be left alone by smart marketers in any industry. But it's beginning to look like when it comes to regulated content, the Net poses brand new problems that calls for new solutions. - Anne