Are you ready to begin advertising your medical practice? If so, you should make sure that you understand the law. Making the wrong decisions when you’re advertising can lead to fines, and may even expose you to civil lawsuits. This short guide will cover some of the important issues that may come up when you’re marketing a practice or services that you offer. You’ll learn:
- What laws apply to medical advertising in the U.S.
- How the FTC identifies deceptive advertising
- Does the AMA issue advertising guidelines?
- What should be avoided when advertising medical practices in the U.S.
Let’s start by looking at how the law applies to medical advertising.
What laws and guidelines apply to medical advertising in the U.S.?
Advertising by physicians and clinics is covered by the Federal Trade Commission Act. This legislation was passed to protect consumers from deceptive practices. It gives the Federal Trade Commission the authority to shut down false advertising by:
- Issuing cease and desist orders
- Imposing fines of up to $43,792 per violation
- Allowing civil penalties of up to $40,654 per violation
- Requiring refunds for customers who were affected
Any or all of these penalties could come at a significant cost to you and your business. It’s important to stay within guidelines if you want to avoid falling on the wrong side of advertising enforcement.
How does the FTC identify deceptive advertising?
The FTC uses a three-part standard for identifying deceptive practices. Advertising is found to be deceptive if:
- The representation misleads or is likely to mislead the consumer
- The consumer’s (misguided) interpretation is reasonable under the circumstances
- The misleading misrepresentation, omission, or practice is material
In general, the FTC requires that any claims made in an advertisement must be substantiated. It also places strict limits on patient endorsements. Patient endorsements must reflect typical outcomes. It’s not enough to add a disclaimer that “results are not typical” when showcasing extraordinary outcomes. To act within guidelines, you must keep the results advertised in line with what the viewer is likely to experience.
Are there FTC medical advertising guidelines for digital ads?
The FTC released guidance for online-specific advertising in 2013 (PDF). While this guidance didn’t specifically cover medical practices, it did discover disclosures. Disclosures (disclaimers and other warnings) are a major part of medical and pharmaceutical advertising. According to this release, you should avoid the following while you are running ads for a clinic, private practice, treatment, or drug:
- Run ads that can’t be designed to fit all necessary disclaimers
- Fail to disclose when endorsements are coming from paid participants (remember this if you use influencer marketing)
Are there state laws regarding medical advertising?
Yes, there are additional laws regarding advertising in nearly every state. In some cases, these laws are stricter or more severe than the federal guidelines laid out by the FTC. For example, in the state of New York, advertising may not make use of any kind of patient testimonials. New York also places additional restrictions on the incentives that may be offered in an advertisement. Only a reduction in the established fee is permitted as an incentive. Make sure that you review the laws for your state before you proceed with advertising.
Does the AMA issue advertising guidelines?
Legal guidelines aren’t the only ones that you need to worry about. In many licensed professions, boards and associations issue guidance about how their members should conduct themselves. Some rules may cover advertising. The American Medical Association is an association group of doctors that provides services and support. It has released ethical guidance on how physicians should advertise:
“There are no restrictions on advertising by physicians except those that can be specifically justified to protect the public from deceptive practices. A physician may publicize him or herself as a physician through any commercial publicity or other forms of public communication…provided that the communication shall not be misleading because of the omission of necessary material information, shall not contain any false or misleading statement, or shall not otherwise operate to deceive.”
The AMA makes the following recommendations for medical advertising:
- It should be readily comprehensible, avoiding complex medical terms or illustrations
- It should not be high-pressure or aggressive
- It should not imply a certainty of result
- Doctors and clinics should be careful about implying that a given treatment is exclusive or unique
What should be avoided when advertising medical practices in the U.S.?
Certain marketing practices may be forbidden that do not fall under the FTC’s jurisdiction. For example, you should not use the names of patients in advertising, or advertise that you prescribe drugs for off-label use.
Do not use the identities of real patients in advertising.
Using the identities of patients is a violation of the HIPPA privacy rule. It is not enough to simply avoid using the patient’s name. People can be identified in many different ways. You should speak to a lawyer before you use any real cases as examples in advertising.
Do not advertise that your clinic prescribes drugs for off-label use
Physicians may prescribe drugs for off-label use under some circumstances. However, advertising this as a service is strictly forbidden. Medical practices that promote their willingness to prescribe drugs for off-label use may be charged with pharmaceutical fraud.
Advertise your practice safely
Now you understand some of the medical advertising guidelines that may affect you if you are trying to promote a treatment or practice. Remember, the FTC has broad authority to enforce the rules against deceptive advertising. You may incur massive fines if you cross a line.
You should also remember what the AMA has said about physician advertising. While this organization doesn’t restrict advertising among its membership, it emphasizes that advertising should be ethical. Practices who violate the law may face additional professional consequences.