Infant formula makers leveraged healthcare data for profit during shortage

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Baby formula mmanufacturers carelessly wasted supply during the national shortage, exploiting personal data in the process.

At the height of the shortage in May, stock-out rates for infant formula soared to 70% on average.

Rebecca Kolowe, Acting Executive Director of Greater DC Diaper Bankdescribed the struggle that many families experienced during the shortage.

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“We’ve always had to limit the amount of formula we can distribute to families, and really with the shortage we’ve had to cut that amount in half, so it’s put a burden on families,” Kolowe says.

Throughout the shortage, however, formula manufacturers were still sending out free samples of formula as a marketing tactic, even though bringing any available product to market would have helped ease the burden on parents in need.

Moreover, many potential buyers who received samples didn’t even have children.

However, the manufacturers did not send random samples. They obtained data on consumer purchases from grocery stores, pharmacies and online stores where baby-related products are sold. They then targeted potential customers with samples based on purchase histories that included health-related products.

Due to the state of consumer privacy law in the United States, the predatory use of health care information by formula manufacturers was, and still is, completely legal.

After a woman tweeted that she received an unsolicited sample of formula in the mail despite having no children and never being pregnant, dozens of users Twitter responded, sharing similar experiences.

Sara Dominiak, a woman from New Jersey who spoke with the Washington Examiner about receiving an unsolicited sample packet, suffered several miscarriages before she could have a healthy baby. She said receiving the unsolicited prep packet in the mail while she was still struggling to conceive was a terrible reminder.

“When I received the package, it was just a reminder, in my mind, that my body had failed,” she said.

The United States currently does not have federal legislation regarding consumer privacy policies. However, due to regulations established by a compendium of state and international lawsthe general rule is that if a company states what it does in its privacy policy, it is permitted to do so, no matter how difficult that privacy policy may be for the average reader to interpret.

“There’s a whole level of digital literacy that’s too complex for a lot of people, even me. I didn’t know what I was putting in there,” Dominiak said.

The Washington Examiner contacted Reckitt, the maker of Enfamil baby formula, to ask about the viral tweet.

A representative from Qorvis Communications, a Washington, DC-based public relations, advertising, media relations and crisis communications firm, responded.

“Reckitt does not have access to the personal information of Walgreens customers. A consumer must knowingly and voluntarily register and consent either directly to Reckitt or one of its partners to receive any infant formula marketing materials. This can come in a number of ways, including self-registration or through a third party who states the information will be shared, but there is always an opt-out option.

Several sources who spoke with the Washington Examiner describes situations in which, after suffering a miscarriage, they continued to receive samples of formulas from Enfamil and other brands, despite opting out of any promotional programs they signed up for.

After Vicki Valencourt suffered a miscarriage, she received several unsolicited formula milk samples at her home despite unsubscribing from all promotional services, she said.

“I was brave enough to unsubscribe from everything. I closed my registry and thought I had done everything I was supposed to do,” Valencourt said.

“When you get those kinds of reminders, it’s almost like you have to mourn your baby again.”

Kirk Nahra, an assistant professor at American University’s Washington College of Law, explained how this can happen.

“Current law says to companies, ‘Have a privacy policy that says everything you can think of, because if you don’t say it, you can’t do it.’ And so people are encouraged to have more rather than less. And there’s not a particular benefit to writing it more clearly,” Nahra said.

Section 5 of the Federal Trade Commission Act prohibits “unfair or deceptive acts or practices in or affecting commerce” in the United States. An act or practice is unfair when it “causes or is likely to cause substantial harm to consumers” or “cannot reasonably be.” Under these standards, unclear privacy policies could be considered to break the law.

However, Nahra said breaches of consumer privacy are generally handled on a case-by-case basis, as they fall into an “area that today, for the most part, at least in the United States, is not particularly regulated”.

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When the Washington Examiner contacted the FTC, a spokesperson said, “We really can’t comment on a specific situation like this.”

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