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10-6-00Electronic Commerce Advisory February 19, 2002
FTC Settles Eli Lilly Prozac Privacy
The FTC had charged that Lilly engaged in deceptive practices in connection with the unauthorized disclosure of sensitive personal information collected at the companys Prozac.com Web site. In the settlement, announced inmid-January, Lilly avoided paying a fine or damages to the affected individuals but had to agree to establish aninformation security program and to refrain from future misrepresentations concerning its information practices.
Eli Lilly promoted its Prozac.com Web site to consumers as Your Guide to Evaluating and Recovering from Depression. The site offered consumers an e-mail reminder service called Medi-messenger. Consumers whoregistered for Medi-messenger would receive personalized e-mail reminder messages concerning their medication orother matters. To register for the Medi-messenger service, individuals selected a password, specified the text of thereminder message and its frequency, and provided their e-mail address.
On June 27, 2001, Eli Lilly sent a form e-mail announcing the termination of the service to all Medi-messenger subscribers. The To: line of this e-mail contained the personal e-mail addresses of all 669 individuals registered forthe Medi-messenger service, thereby disclosing personal information provided to Lilly in connection with the con-sumers use of Prozac.com.
The Consent Order
The proposed settlement agreement1 prohibits Lilly from misrepresenting in any way the extent to which the com- pany maintains and protects the privacy or confidentiality of personally identifiable information collected from or aboutconsumers. Interestingly, the order is not limited to Lillys online activities; the proposed settlement also applies to thecompanys brick and mortar activities. In addition, the proposed settlement applies to all personally identifiableinformation collected from or about consumers in connection with the advertising, marketing, offering for sale, or saleof any pharmaceutical, medical or other health-related product or service by the companys U.S. division.
Part II of the proposed order requires Lilly to establish and maintain an information security program. The program must include: Designation of appropriate personnel to coordinate and oversee the program; Identification of reasonably foreseeable internal and external risks to the security, confidentiality and integrity of personal information; Conducting an annual written review by qualified persons to monitor and document compliance with the program, evaluate the programs effectiveness and recommend changes to it; and Adjusting the program in light of the annual review or any material changes to the companys operations that affect the program.
Observations on the Lilly Settlement
The FTCs case against Lilly is interesting for many reasons. Coming as it does less than two months after FTC Chairman Timothy J. Muris announced the Commissions intention to focus on enforcing companies privacy poli-cies and existing privacy laws rather than seeking passage of new privacy laws, the case illustrates that companiesmust view promises made in their privacy policies as binding contractual representations. General feel goodstatements about the companys commitment to privacy, or customer-friendly statements designed to reduce con-sumer anxiety, can be dangerous if they are not backed up by sound policies and procedures.
As noted, Lillys disclosure of personal information was unintentional and a one-time occurrence. However, even an unintentional breach of stated policy can result in liability, especially where sensitive personal information is involved.
The Lilly case is the first FTC enforcement action to focus on the security of personally identifiable information.
Other FTC enforcement actions have addressed the collection of personal information and the transfer or sharing ofinformation, but this case hones in on the nuts and bolts of operational procedures and shows how easy it is for evensensitive personal information to be compromised through lack of training and supervision.
Finally, the Lilly case provides a glimpse into the tangled world of health care privacy where gaps between laws and overlapping laws create confusion for consumers and industry alike. While the Prozac Web site was collecting 1 The proposed consent agreement was published for public comment in the Federal Register on February 1, 2002. Comments are due by February 19, 2002. 67 Fed. Reg. 4963 (Feb. 1, 2002).
sensitive personal information about the existence and treatment of a medical condition, the site would not besubject to the privacy rules issued under the Health Insurance Portability and Protection Act (HIPAA) because Lillyis not a covered entity under HIPAA.2 On the other hand, if a Web site operated by a hospital or physician collectedthe same information, it would be subject to the HIPAA privacy rules because the hospital and physician are coveredentities. The interaction of these two regulatory schemes HIPAA and Section 5 of the FTC Act will continue tochallenge companies that collect personal health information. n 2 The HIPAA privacy rules were issued in final on December 28, 2000; compliance is not mandatory until April 14, 2003. For background on the rule, see Alston & Bird LLP Advisories, HHS Issues Final HIPAA Privacy Regulations dated January 11, 2001, and located at http:// HIPAA Privacy Regulations Become Effective, dated May 2001 and located This Electronic Commerce Advisory is published by Alston & a summary of significantdevelopments to our clients and friends. It is intended to be informational and does not constitute legal advice regardingany specific situation. This material may also be considered advertising under applicable court rules. This advisory maybe reprinted without the express permission of Alston & Bird so long as it is reprinted in its entirety including the Alston &Bird name and logo. If you have any questions or would like additional information, and/or if you would like to receivethis information via e-mail, please contact your Alston & Bird attorney or the following: If you would like to receive future advisories by e-mail, or if you would like to be removed from the distribution list,please advise Janice McDuffie via facsimile at 202-756-3333 with yourname, company and e-mail address.
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