Baby formula manufacturers exploited healthcare data for profit during shortage

Rebecca Kolowe, executive interim director of the Greater D.C. Diaper Bank, described the struggle many families were experiencing during the shortage.

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“We’ve always had to limit the amount of formula that we’re able to distribute to families, and really with the shortage, we’ve had to cut that amount in half, so it has placed a burden on the families,” Kolowe said.

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

Moreover, many prospective buyers who were sent samples did not even have children.

Manufacturers were not sending out samples at random, though. They obtained consumer purchase data from grocery stores, drug stores, and online stores where baby-related products are sold. They then targeted potential customers with samples based on purchase histories that included healthcare-related products.

Due to the state of consumer privacy law in the United States, the formula companies’ predatory use of healthcare-related information was, and still is, completely legal.

After a woman tweeted about receiving an unsolicited sample of baby formula in the mail despite not having children and never having been pregnant, dozens of Twitter users replied, sharing similar experiences.

Sara Dominiak, a woman from New Jersey who spoke with the Washington Examiner about receiving an unsolicited package of samples, endured multiple miscarriages before she was able to have a healthy baby. She said receiving the unsolicited package of formula in the mail when she was still struggling to conceive was a terrible reminder.

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

The U.S. does not currently have federal legislation regarding consumer privacy policies. However, due to regulations established by a collection of state and international laws, the general rule is, if a company states what it is doing in its privacy policy, it is allowed to do it, no matter how challenging that privacy policy might be for the average reader to interpret.

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

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

A representative for Qorvis Communications, a Washington, D.C.-based public relations, advertising, media relations, and crisis communications firm, responded.

“Reckitt does not have access to Walgreens’ customer personal information. A consumer must deliberately and voluntarily opt in and consent either with Reckitt directly or with one of its partners to receive any infant formula marketing materials. This can come from multiple paths, including self-enrollment or through a third party who states that information will be shared, but there is always an option to opt out.”

Multiple sources who spoke with the Washington Examiner described situations in which, after suffering a miscarriage, they continued to receive formula samples from Enfamil and other brands, despite opting out of all promotional programs they’d signed up for.

After Vicki Valencourt suffered a miscarriage, she received several unsolicited samples of formula at her home despite unsubscribing from every promotional service, she said.

“I did get the courage to finally just unsubscribe from everything. I closed off my registry, and I thought I did everything I was supposed to do,” Valencourt said.

“When you get these kind of reminders, it’s almost like you have to grieve your baby all over again.”

Kirk Nahra, adjunct 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 imaginable that you’re doing 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 particularly any advantage to writing it clearer,” Nahra said.

Section 5 of the Federal Trade Commission Act prohibits “unfair or deceptive acts or practices in or affecting commerce” in the U.S. An act or practice is unfair where it “causes or is likely to cause substantial injury to consumers” or “cannot be reasonably avoided by consumers.” By those standards, unclear privacy policies could be said to violate the act.

However, Nahra said consumer privacy violations are usually handled on an individual, case-by-case basis because they fall under 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.”