‘Misleading’ social media weight loss ads: Should drugmakers be liable in court?

In a 14-minute video on her YouTube channel, Kai Michelle, dressed in a hot pink dress, demonstrates to viewers how to inject Ozempic, a prescription medication that’s all the rage for losing weight.

From her kitchen, she tells viewers about some side effects, such as stomach cramps. But in 12 weeks, she’s lost 20 pounds. Some days, she says, she has no appetite at all.

“I have been trying to lose weight for, like, forever,” she tells viewers. “I just want to lose weight and get into a comfortable size.”

The social media marketing of Ozempic and related drugs, which are designed for diabetes but used for weight loss, is a critical part of the legal claims lodged against drug manufacturers Novo Nordisk and Eli Lilly. A surge of advertising, often in the form of personal testimonials, appears on such sites as YouTube and TikTok, where paid influencers have ratcheted up the popularity of the drugs.

It’s what makes Ozempic stand out from most pharmaceutical cases.

“I can’t sit here and think of anything that comes close to that,” Motley Rice’s Sara Couch told Law.com. “And the real power in social media is it is incredibly tailored, and it is incredibly present. The patient and potential consumer are receiving these messages multiple times a day, not just one time at a doctor’s office, or a TV ad once a day.”

The lawsuits allege Novo Nordisk and Eli Lilly failed to adequately warn about the risks of gastroparesis, or stomach paralysis, leading to nausea, vomiting and often hospitalizations. Both Novo Nordisk and Eli Lilly have denied the allegations, noting that the labels warn about gastrointestinal issues, but plaintiffs lawyers insist the disclosures downplay the severity of the risks.

But it’s the promotion of the drugs on social media that is front and center in the litigation.

“It’s going to be a huge focus of the prosecution of this case,” Brad Honnold, a partner at Gonza Honnold in Overland Park, Kansas, told plaintiffs lawyers at a Feb. 9 webinar about the Ozempic litigation.

’A lot of misleading content from third parties’

More than 70 lawsuits have been filed over Ozempic and Novo Nordisk’s other weight loss medications, Wegovy and Rybelsus, as well as Eli Lilly’s Trulicity and Mounjaro. But lawyers predict at least 10,000 cases.

U.S. District Judge Gene Pratter, who is overseeing the multidistrict litigation in the Eastern District of Pennsylvania, held her first hearing on Thursday.

Although social media and online advertising of prescription medications aren’t new, Ozempic and related drugs have taken that trend to new levels, particularly with telehealth providers, such as Noom and Calibrate, which send the medication directly to a patient’s door or local pharmacy.

Honnold told Law.com that it’s the “first example of hyper-aggressive marketing,” both in the social media space and in the telehealth space, which became ubiquitous during the COVID-19 pandemic.

“It just really borders on exploitation of patients,” Honnold told Law.com. “This is strictly an encounter that happens like if you ‘friend’ somebody in the social media space. A telephone call that involves a very brief face-to-face with some of them, a tele-video sort of thing, and certainly not anywhere near what the patient would receive if they were receiving this information in due course from their regular physician.”

Related: 10,000 patients have filed ‘gastro’ claims against Ozempic, Mounjaro drugmakers

Couch, who is in Mount Pleasant, South Carolina, said there’s no real informed consent from patients who are able to qualify for the medication within five to seven minutes.

“Their sole purpose is to get as many subscriptions as possible,” she told Law.com.

She said the cases seek to uncover potential financial links between the telehealth providers and the drugmakers.

In a statement, Novo Nordisk acknowledged the social media advertising of its medications but insisted influencers are not posting content on its behalf.

“Patient safety is our top priority at Novo Nordisk, and we work closely with the U.S. Food and Drug Administration to continuously monitor the safety profile of our medicines,” the company said. “We agree that there has been a lot of misleading content from third parties that are promoting prescription drugs on social media—much of it from medical spas, medical clinics, telehealth companies and social media influencers.”

Novo Nordisk identifies and labels its social media content, the statement said, and does not work with influencers to share their personal experiences.

Eli Lilly, in a separate statement, said it does not provide its drugs, or their ingredients, to third parties.

“At Lilly, we are committed to acting ethically and responsibly in all that we do,” the statement said. “The same is not necessarily true for some companies advertising on social media, and we encourage people to check reputable sources before engaging with certain advertisements on social media.”

‘These drugs are not without risks’

The use of telehealth providers and websites that aren’t transparent about the risks means there might not be adequate informed consent from patients, and that could open the door toward liability against the drug manufacturers, said Tara Sklar, a professor at the University of Arizona James E. Rogers College of Law who is following the Ozempic litigation.

“In a nutshell, the involvement of telehealth and online weight loss platforms in prescribing and promoting these medications could potentially complicate legal matters for the drug companies, especially if they are not following appropriate patient screening and monitoring protocols as these drugs are not without risks and could cause patient harm,” she said.

And the scrutiny of social media advertising of pharmaceutical drugs isn’t just in court.

Last month, U.S. Sens. Dick Durbin, a Democrat from Illinois, and Mike Braun, a Republican from Indiana, urged the U.S. Food and Drug Administration to crack down on what they called “misleading social media ads” for prescription drugs, particularly targeting children. Their Feb. 14 letter references Ozempic.

“The power of social media and the deluge of misleading promotions has meant too many young people are receiving medical advice from influencers instead of their health care professional,” they wrote.

But it’s not just their delivery of the drugs and the age of the patients that’s concerning. Sklar called the drug’s online advertising at times misleading because the claims lean more on the benefits than the risks.

“The marketing of Ozempic and Wegovy on social media has been extensive, even aggressive, with ads on TikTok, Facebook, Instagram, using influencers and celebrities, that seem to target a much broader segment of the population than traditional drug advertisements,” she said. And more weight-loss drugs are planned to hit the market. “All this combined with high drug costs cause alarms to ring for stronger boundaries around drug promotion,” she said.