A rheumatologist I know recently decided to launch a marketing campaign in an attempt to increase his patient base and enhance the reputation of his practice in the community. As part of these marketing activities, he hired an advertising agency to develop a campaign that would appear in local media outlets. While he excitedly mentioned this new venture to me as a side note in conversation, I was immediately concerned. Advertising executives are experts in creative marketing, not the law. I urged the rheumatologist to have me review the advertisements before they were published to ensure that they did not violate state and federal laws.
While it can be exciting to work with a creative team to develop an advertising campaign, rheumatologists should be sure that the ads for their practices or services do not violate state and federal laws.
Laws Governing Advertisements
Advertisements by physicians are legal under the Federal Trade Commission Act (the Act), provided that the advertisements are not false, deceptive, or misleading. The following are general rules of thumb that may be used to determine whether an advertisement is truthful under the Act:
- Does the advertisement contain material false claims or misrepresentations of material fact? In general, if an ordinary and prudent person’s behavior would likely be affected by a false claim or misrepresentation of fact, then it is considered “material” and would be in violation of the Act.
- Does the advertisement contain material implied false claims or implied misrepresentations of material fact? Even if an advertisement does not contain direct false claims or misrepresentations of material fact, the advertisement may nevertheless be in violation of the Act if it implies false or unjustified expectations about the physician or the physician’s services.
- Are there any omissions of material fact from the advertisement? If the omission of a fact would make the advertisement misleading to an ordinary and prudent person, then it is in violation of the Act.
- Are you able to substantiate material objective claims and personal representations made in the advertisement? All claims and representations made in the advertisement must be supported by objective evidence.
In the event that a physician’s advertisement is found to be false, deceptive, or misleading, the physician may be sued by the Federal Trade Commission (FTC) for disseminating the advertisement to the public. Further, the FTC may fine the physician and enjoin him or her from further disseminating the advertisement in the future.
