Nia Johnson (Wake Forest University – School of Law) has posted The Misaligned Market of Health Influencing (Boston College Law Review, forthcoming) on SSRN. Here is the abstract:
Healthcare has numerous challenges. First, it is costly, with the United States having the highest healthcare expenses in the Western world. It is also time-consuming; an emergency room visit can take hours, and scheduling an appointment with a doctor may take months. Healthcare is socially and emotionally demanding. The system has historically marginalized groups such as women, racial minorities, and LGBTQ+ populations, causing fear and distrust. Additionally, doctors are often seen as detached or reserved, which can be off-putting during crises. These issues create major legal and policy obstacles—primarily, healthcare access. Consumers have never enjoyed the expensive, impersonal healthcare market, and mainstream alternatives have been virtually nonexistent. Recently, health influencers—individuals who share medical information through social media—have emerged as a nominal substitute. They are affordable, accessible, personable, and entertaining. In many ways, they are the easiest entry point for health information. This development has some positives; however, health influencers lack strong incentives to provide accurate information. This has resulted in an unregulated market for critical health details.
The law has left the burgeoning health influencing and content creation industry untouched, leaving consumers without redress for poor information. Legal scholars have begun to propose solutions to these challenges, citing the role of the tort system in protecting consumers. However, there is an additional concern that previous scholarship does not fully address: how exclusion pushes individuals into unregulated markets. This Article posits that examining perceived exclusion illuminates why health influencing has developed into a market for medical information, rather than a mere form of speech. It argues that health influencers should be regulated, but within this context. It contributes to the growing discourse in health law on misinformation. It also provides novel insights into the health influencer market and its impact on public health infrastructure. First, I will provide an overview of the health influencer industry: who is in it, which platforms they use, and the incentives within it. Then I will address the conditions that allow for the health influencer market to thrive. Lastly, I will propose that states should regulate health influencers through negligent misrepresentation claims and address why duty is the best avenue for change.
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