Meta and Oversight Board Squabble Over Ads for Drugs

Meta is once again showing the limits of its own Supreme Court’s policy recommendations. This time, the disagreement centers around the ways users can post about certain drugs like ketamine on Facebook and Instagram. These drugs, which can straddle the line between recreational and therapeutic use, can run right up against the limits of what’s permissible to promote on social media platforms.

In a blog post last week, Meta stopped short of immediately committing to an audit of what its Oversight Board describes as potentially “inconsistently enforced” policies regarding the sale or promotion of illegal and recreational drugs on its platforms. The company also ignored a separate recommendation from the Board calling on the company to clarify language in its drug-related policies. Currently, posts admitting to using or promoting pharmaceutical drugs, including those that result in a high, are only allowed in the context of a “supervised medical setting.”

But what exactly counts as a supervised medical setting in an era where startups can mail Schedule III drugs to your door? Meta, the Board wrote, needs to properly define what a medical setting means here and update its Restricted Goods and Services Community Standard accordingly. Changes to that policy potentially excluding “home use” as a proper medical setting could have dealt a blow to trendy mail-order drug companies like MindBloom by restricting users’ ability to post about ketamine, MDMA, and other psychoactive drugs being used by some clinicians to treat mental health issues.

“The Board is concerned about Meta’s inconsistent enforcement of its policies with regards to pharmaceutical and non-medical drugs,” Oversight Board spokesperson Dan Chaison told Gizmodo. “It stands by its recommendation that Meta should clarify the policy language around content that admits to using or promoting pharmaceutical drugs, and audit how its Branded Content policies and its Restricted Goods and Services Standard are being enforced.”

Meta, in its response, said it is worried that implementing the Board’s recommendation could result in the “unnecessary and disproportionate” removal of potentially helpful speech online.

“We are concerned that requiring users to include specific language about a ‘supervised medical setting’ to post content about these drugs that we would otherwise allow would unduly restrict speech on our platforms,” Meta said in its response. “Such a requirement could result in removal of legitimate speech by limiting people’s discussions of pharmaceutical drugs, even where there is no evidence of misuse, to instances where they provide details about a provider’s license, indicate the presence of medical staff, or discuss their medical diagnosis.”

Meta directed us to its response to the Oversight Board’s recommendations when reached for comment. Mindbloom General Counsel Michael Petegorsky, meanwhile, told Bloomberg the decision (or lack thereof) represents a “big win” for people interested in ketamine therapy and other psychedelics.

How did we get here?

The policy battle between Meta and its Oversight Board originates from a 2022 Instagram post where a verified Instagram user posted 10 images as part of a post with a caption describing their experience using ketamine as a treatment for anxiety and depression. The post, which was labeled a “paid partnership,” included a prominent ketamine therapy provider tagged as a co-author. Ketamine therapy treatment was described as a “magical entry into another dimension.” Several of the images included psychedelic-style drawings.

Three separate users reported the post which was viewed around 85,000 times. Each of those times, the content was removed and then reinstated. Eventually, the post’s author brought the matter to Meta’s attention thanks in part to their status as a “managed partner.” This special status is often offered to celebrities or businesses to provide them access to a dedicated partner manager and other privileges. Meta determined the content did not violate its policies and left it up but opted to toss the case to the Oversight Board for review because the core issue it raised “creates tension between our values of safety, voice and dignity.”

In its ruling, the Board pointed out that Meta’s Branded Content, which this post fell under, clearly prohibits the promotion of “drugs and drug-related products.” Meta reportedly admitted to the Board that not all of the content slapped with a “paid partnership” label are viewed against the Branded content policy due to limitations of human moderators’ ability to moderate at scale.

“This greatly increases the risk of under-enforcement against this kind of content,” the Board wrote in its August decision.

Meta’s response

Meta compiled with the Oversight Board’s binding decision and removed the initial Instagram post. The company also committed to clarifying the meaning of its “paid partnership” labels to increase transparency. Moving forward, Meta said it will provide specific instructions on tagging brand partners in “paid partnership” as well as offering information about which brand partners can approve that label.

But Meta stopped short of the Oversight Board’s request to conduct a full audit of its enforcement policies as it relates to selling and paid promotion of drugs. Instead, Meta hedged and said it would “assess the feasibility” of conducting an extensive audit in the first half of 2024. It’s too early to tell whether or not that full audit will ever happen. Overall, Meta committed to implementing three of the Board’s four recommendations in the case in full or in part.

“The Board will closely monitor Meta’s progress towards the recommendations from this case,” The Oversight Board spokesperson added.

Diverging from Oversight Board recommendations isn’t new

Meta has a unique, some may say odd, relationship with its Oversight Board. The transparency and ethics watchdog operated independently of the company but was created and funded by Meta. The Board selectively takes on some of the trickiest content moderation dilemmas in social media, with the goal of offering up rulings on cases that can have far-reaching consequences for billions of users. The Board previously weighed in on Meta’s years-long suspension of former president Donald Trump’s account as well as heated speech debates related to abortion rights on Facebook and Instagram.

The Oversight’s bylaws say Meta must agree to the Board’s binding decisions on cases. So far, during the Board’s three years of work, Meta has upheld that agreement. But in addition to those binding decisions, the Board also issues a number of non-recommendations in its rulings for each case. Here Meta has been less willing to see eye-to-eye. Meta has already rejected key recommendations proposed by its Board, including a recent plea from the Board to immediately suspend the Facebook and Instagram accounts of former Prime Minister Hun Sen. Critics of the authoritarian dictator argue he used his platform to amplify threats of violence against political opponents. But Meta declined to take action on his accounts, saying a suspension of the “would not be consistent” with its policies.