New FDA Guidance Clarifies Brand & Generic Name Inclusion in Print, Broadcast and Online Media

First, let’s note that this document does not provide any new regulations regarding the industry’s use of digital and social media.

Instead, these guidelines respond to requests that the FDA clarify the specific regulations for placement, size and prominence of brand names vs. generic names appearing in promotional advertisements (print, audio/video and online). Below is a high level overview of the FDA guidance. You can find a more detailed explanation of each section further down in this article. For the full PDF of the FDA guidance, click here.

Overview

Please note: The FDA makes the distinction between “running text,” (the main body of text) and other items on a web page including “headlines, taglines, logos, footnotes, graphs or pictures.”

Positioning

• The generic name should be placed directly to the right of, or directly below the brand name
• Registered trademark symbols are permitted, but brand/generic names should not be separated by logos, taglines or other graphics

Size

• In “running text,” generic names must be the same type size as brand names
• In headlines, taglines, logos, footnotes, graphs and pictures, generic names must be at least half as large as the largest letter of the brand name

Prominence

• The FDA will consider methods of emphasis (bold, italics, etc…) when assessing adherence to these guidelines, for example, if the brand name is bold, the generic name should also be bold

Frequency of Disclosure

• Online Media
  • If the brand name is in a headline, tagline, logo, footnote, graph or picture, the generic name is required to appear with the brand name each time it appears
  • If the brand name is part of the “running text,” the generic name is required to appear with the brand name at least once per “screen,” or column, if the page is separated by columns

• Audio/Visual (video/audio)
  • For text such as a headline or tagline, the generic name should be displayed to the right of, or directly below the most prominent display of the brand name, and be displayed on the screen for the same amount of time
  • For text that typically runs along the bottom of the screen, the generic name does not have to be included with the brand name
  • The generic name should also be included in the audio portion during the most prominent display of the brand name

Our Perspective

While the FDA guidance takes steps to clarify the required relationship between brand and generic names in promotional materials, it merely notes specifics regarding the physical placement/presentation of the terms.

The agency does not take into account certain inherent aspects of technology. For instance, the agency references “screens” in the section regarding “frequency of disclosure of names…,” however, it does not take into account the many different types of screens and various ways a website or advertisement can be displayed. Is the FDA referring to what you see upon landing on the page? or scrolling from top to bottom? What about browser specifications, screen resolutions and viewing content on tablets or various mobile devices? These are all questions that have yet to be addressed by the FDA.

Furthermore, the classification of “online media” does not distinguish between advertisements, websites or social media channels. As with most of the recent FDA guidance, these issues are left to interpretation.

Our CCC teams are here to help clients navigate the FDA guidance and ensure adherence to all rules and regulations. If you have any questions or concerns, don’t hesitate to reach out.

…and if you’re interested in the details…

Note: The FDA defines “proprietary” as the “brand” name and “established” as the “generic” name of the drug.

Juxtaposition of Proprietary and Established Name

Previous FDA guidance directed that “the established name shall be placed in direct conjunction with the proprietary name or designation.” The January 2012 guidance further clarifies this to state that the established name be placed either directly to the right of, or directly below, the proprietary name. FDA also recommends that “the proprietary name and the established name not be separated by intervening matter, such as a logo, tagline, or other graphics.”

Note: FDA does not intend to prohibit companies from using trademark symbols, such as registered trademark (®) and unregistered trademark (™), or controlled substance symbols (e.g., CII).

Size of Proprietary and Established Names

When the established (generic) name accompanies the proprietary name (brand), the regulations also state that:

• Both be presented in the same type size in the “running text” of a promotional advertisement or website
• When the proprietary name is presented outside the “running text,” such as in a headline, or is presented in larger sized type than that of the surrounding text, the established name is required to be printed in letters that are at least half as large as the largest letter of the proprietary name

Prominence of Proprietary and Established Names

This section clarifies that FDA will consider all methods used in promotional communications to provide emphasis (type size, spacing and contrast), when evaluating whether the established name is presented within the above guidelines. For example, if the proprietary name is printed in bold black text, the FDA recommends that the established name be presented in the same way.

Frequency of Disclosure of Proprietary and Established Names

Note: This section only covers “Electronic and Computer-Based Promotional Labeling and Advertisements” and “Audio-Visual Promotional Labeling and Broadcast Advertisement” as defined by the FDA.

• Online Media
  • If the proprietary name is in a headline, tagline, logo, footnote, graph or picture, the established name is required to accompany the proprietary name each time it appears.
  • If the proprietary name is part of the “running text,” the established name is required to accompany the proprietary name at least once per “screen,” or column, if the page is separated by columns. Please note: “Screen” is not defined in this guidance.

• Audio/Visual (broadcast/video/audio)
  • For superimposed text such as a headline or tagline, the established name should be displayed in direct conjunction with the most prominent display of the proprietary name, and be displayed on the screen for the same amount of time.
  • For superimposed text that typically runs along the bottom of the screen, the established name does not have to be included with the proprietary name.
  • The established name should also be included in the audio portion of the most prominent display of the proprietary name. Under most circumstances, this is the first occurrence in the broadcast.