The Secret Tool the FDA Uses to Control News Reports About Its Decisions

The agency relies on "close-hold embargoes" to restrict reporters from contacting outside sources about FDA stories.


credit—Congressional Quarterly/CQ Roll Call/Newscom

The Food and Drug Administration (FDA), apparently not satisfied with exerting a considerable and often wildly inappropriate amount of control over what people can put in their bodies, has also taken extraordinary and secretive steps to control what sorts of information people can read about the agency's decisions.

To understand how the FDA controls news about its policies, you have to understand news embargoes, in which a source agrees to provide information if reporters agree to hold the news until a specific time.

Embargoes are a widely employed and often useful part of journalism: They can help give reporters time to go over stories—especially those with complex, technical aspects—carefully, and can help ensure that critics and opinion writers don't feel pressured to rush to judgment. Embargoes, in other words, give reporters the opportunity to think, clarify, and work through a story without worrying about getting scooped. And in the process, they can help create better journalism. Or at least that's the hope.

The flip side, of course, is that embargoes can also be used by sources to control stories, at least to some extent. By forcing every outlet to agree to the same embargo, PR operators can ensure that there's a flood of stories all at once, making it seem like something—usually a product that someone is trying to sell—is suddenly everywhere in the news. Embargoes can also be used to keep negative news and reviews from leaking before a product hits the market. In at least one case I'm aware of, video game critics, in exchange for early access to a game, were forced to agree to an embargo that didn't lift until 12 hours after the game was available to buy online.

Traditionally, the limiting factor on embargoes stories is just time. But according to scathing report in Scientific American, the FDA has recently been adding another factor for sharing news with early reporters: No outside sourcing. This turns into what is called a "close-hold embargo."

The FDA initially attempted to impose a close-hold embargo in 2011, according to the story, but updated its official embargo policy to allow reporters to contact third parties following complaints by journalists. Except that apparently the FDA secretly went ahead with a close-hold embargo strategy anyway, despite its own publicly posted rules. And according to snippets from an agency memo published by Scientific American, the explicit goal is to shape and control news coverage:

The FDA, too, quietly held close-hold embargoed briefings, even though its official media policy forbids it. Without a source willing to talk, it is impossible to tell for sure when or why FDA started violating its own rules. A document from January 2014, however, describes the FDA's strategy for getting media coverage of the launch of a new public health ad campaign. It lays out a plan for the agency to host a "media briefing for select, top-tier reporters who will have a major influence on coverage and public opinion of the campaigns.… Media who attend the briefing will be instructed that there is a strict, close-hold embargo that does not allow for contact with those outside of the FDA for comment on the campaign."

Why? The document gives a glimpse: "Media coverage of the campaign is guaranteed; however, we want to ensure outlets provide quality coverage of the launch," the document explains. "The media briefing will give us an opportunity to shape the news stories, conduct embargoed interviews with the major outlets ahead of the launch and give media outlets opportunities to prepare more in-depth coverage of the campaign launch."

The FDA has apparently relied on this practice not only to control when news is published, and who reporters talk to for their stories, but which news organizations get access to information. As the Scientific American story notes, major outlets such as Fox News and National Journal sometimes didn't receive invites to pre-release press briefings at all. In one case documented in the story, an FDA spokesperson told a National Journal reporter that the agency could not confirm or speculate on the timing for the of new rules regarding e-cigarettes—despite having already scheduled a release date and set up a briefing with other news outlets. In another, an FDA spokesperson claimed not to have contacted Fox News because of a lack of a good press contact.

The FDA, for its part, doesn't like it when reporters acknowledge that close-held embargoes even exist. After The New York Times noted in a story that the FDA had provided information on the condition that they "not talk to industry or public health groups" until after the news was public, an FDA official sent the Times reporter responsible for the story an email complaining about the mention, and noting that no other outlet had shared the details of the embargo. The very fact that a close-held embargo is in place is supposed to remain secret.

The FDA is not alone in its use of close-hold embargoes. For example, early details about a 2012 paper, which was eventually retracted, claiming a connection between genetically modified foods and rat cancer, were also provided under similar rules. But the story focuses on the ways in which the FDA has used the practice, despite its official policy saying otherwise.

This whole thing is appalling, especially given that it's an arm of the federal government using it to prevent the public from seeing outside opinions on its decisions.

Unfortunately, the strategy seems to work much of the time, as the story notes that reporters from major news outlets, including all the broadcast TV networks, CNN, and the Associated Press, have participated in such embargoes, and published stories without any critical comment.

At that point, why not just become an FDA press officer? In fact, as the story notes, one former reporter for the AP did just that. When Scientific American asked for comment on the his work as a reporter, he responded: "I'm not really sure whether I'm comfortable discussing that at this point."