Navigating the New Era of Mobile Engagement: A Guide for Life Sciences Companies on Government Policies
Brian Fitzgerald | February 12, 2024
As life sciences companies turn to innovative new mobile technologies to increase HCP and patient engagement, it is important that company leaders take note of recent government actions. The intersection of technological convenience and regulatory compliance represents a critical crossroads where things can sometimes go sideways. And that can open a company up to fines, penalties, lawsuits, and, worst of all, prosecution. That’s why life sciences companies must tread this technological frontier cautiously, especially in light of recent policy updates from the Department of Justice (DOJ) and the Federal Trade Commission (FTC).
Two of the most recent are the Department of Justice’s (DOJ) updates to the Evaluation of Corporate Compliance Programs (ECCP) and updated language within the Federal Trade Commission (FTC) and DOJ’s standard preservation letters and specifications.
What are the ECCP Updates?
In March of 2023, the DOJ’s Criminal Division released important updates to the ECCP. The first major revision involves using personal devices, communications platforms, and messaging applications, including ephemeral messaging applications. This is extremely relevant to sales teams within life sciences because reps often communicate with HCPs and sometimes patients using personal devices, inadvertently blurring the lines between professional and personal data exchanges. The ECCP now underscores the need for companies to implement strict policies and procedures for retaining business-related communications. This stipulation includes a stringent review to ensure that employees are not using unapproved applications and devices to conduct business.
The other ECCP revision digs into how compensation strategies can steer compliant conduct, advocating financial penalties, like compensation clawback, to deter misconduct. The guidance was designed to encourage companies to establish a stronger link between compliance and compensation, encouraging a reward system anchored in ethical and compliant behavior. In short, compensation plans should reward employees who follow the rules while punishing those who don’t.
What are the Updates to the FTC and DOJ Standard Preservation Letters and Specifications?
On the heels of the ECCP updates, on January 26, the FTC and DOJ refined their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal processes, including grand jury subpoenas, in a bid to encompass modern communication tools – most notably, ephemeral messaging platforms. As collaboration tools reshape workplace dialogue, these amendments iterate the unequivocal duty of companies to maintain certain documentation throughout the tenure of government investigations and prospective litigation.
In a news release announcing the effort, Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division, said, “These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages. The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges.”
What does this mean for life sciences companies?
As companies continue to adopt new technologies to streamline and enhance their work, they need to be aware of certain pitfalls. For example, the increased use of collaboration tools and ephemeral messaging applications, such as Slack or Signal, which allow users to immediately and irretrievable destroy communications and documents, can put a company in hot water. Documents created through the use of these technologies have long been covered by FTC and DOJ document requests. However, companies have not always properly retained documents and business-related communication during government investigations and litigation. And according to the FTC and DOJ update, companies can no longer protect themselves by pleading ignorance of the mandate or an individual employee’s behavior.
Unfortunately, the consequences for noncompliance can be steep. When companies fail to preserve documents and business-related communications covered by an FTC or DOJ investigation or enforcement action, the government can move for civil spoliation sanctions and, in some circumstances, may even refer cases to criminal prosecutors. As such, it’s important that companies use technologies that retain all company-related communications, and that enable legal and compliance teams to retrieve them when needed.
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What Should Life Sciences Companies Do?
For life sciences companies seeking to capitalize on the benefits of mobile engagement while steering clear of potential litigation, the path forward involves preemptive action and strategic technological investments. Key measures include:
Evaluating Communication Tools: Rigorously assess the capabilities and compliance features of all mobile and digital communication platforms before integration into business workflows.
Implementing Preservation Tactics: Develop and enforce policies that mandate the retention and archiving of communications, aligning with the updated guidelines from the DOJ and FTC.
Risk Management: Establish a dedicated team or partner with third-party consultants to conduct periodic risk assessments and compliance evaluations, ensuring alignment with the evolving legal landscape.
Employee Training: Regularly educate all employees on best practices for digital communication, emphasizing the legal ramifications of non-compliance.
Technological Solutions: Invest in advanced compliance technology capable of creating immutable records for digital communications, irrespective of the platform used.
Additionally, when it comes to technology solutions, collaboration tools and ephemeral messaging platforms, such as Slack and Signal, have transformed into popular channels for swift communications within enterprises. Nevertheless, their inherent design to delete data instantaneously can be problematic when it comes to document preservation mandates during investigations or legal proceedings. And that’s why some of the industry’s leading names have turned to the ZING engagement Suite.
What is the ZING Engagement Suite?
ZING supports HCP and patient engagement in a way that addresses the complex compliance issues created by FTC, DOJ and other government body mandates. Every message sent through ZING can be preapproved, retained and audited for the sake of transparency and compliance. The platform also comes with customizable templates that help ensure HCPs and patients don’t receive content they shouldn’t. All messages, digital assets and replies can be quickly preapproved by compliance and preloaded into the system.
As an added layer of protection, ZING’s built-in, AI-powered content moderation tools help ensure that HCPs and patients never get the wrong message. With ZING, reps are less likely to send off-script messages that put the company at risk. All of ZING’s data can be stored appropriately and pulled for legal or compliance upon request. This includes messages sent by reps and HCPs, Date, Time, location, browser, operating system, device used, etc.
The convergence of technology and compliance presents opportunities and challenges for life sciences companies delving into mobile engagement. However, it is crucial that organizations not only recognize but adequately prepare for the legal implications that come with modern communication methods. By integrating comprehensive compliance measures into their mobile engagement strategies, life sciences companies can mitigate risks, prevent legal complications and maintain the trust of HCPs, patients and regulators. In doing so, companies can ensure that their pursuit of innovative communication fosters growth and enhances engagement without compromising their legal standing.
ZING plays a pivotal role in this by equipping legal and compliance teams with the necessary tools to preserve company-related communications without hindering the progress enabled by modern engagement technology. ZING caters precisely to the life sciences industry and offers an ideal balance between innovative mobile engagement and adherence to compliance mandates. We invite you to look at our informative eBook to learn how ZING can make you a compliance hero.