Creative marketing or deceptive advertising?

Dr. Ad employs a variety of advertising methods to grow his practice. So do many of his peers. Two years ago, he ran an ad about a facial cream he had developed. The ad said that prolonged use of the cream at a price of $1,000 per tube would negate a need for a facelift. A patient bought 20 tubes and used the cream for an entire year and saw no improvement. The patient filed a complaint with both the Federal Trade Commission and the State Board of Medical Examiners alleging fraud. Dr. Ad hired an attorney to defend him. Dr. Ad claims that his marketing was harmless and no different than most other ads. Is he in trouble?

Many doctors advertise - some a lot, others very little. Others do not. It is important for dermatologists to be careful with “creative marketing.” Such marketing may persuade patients to visit, but may not be in line with regulations that impact physicians. 

More Legal Insights from Dr. Goldberg

Physician advertisements are governed by the Federal Trade Commission Act. Under this Act advertising is legal as long as it is not “false, deceptive or misleading”. In identifying those elements in an ad, the FTC looks at: 

#1 Overt or implied material false claims…

Examples might be “Facial rejuvenation by Dr. Ad makes you look 30 years younger!” and/or “Come to Dr. Ad to look 20 years younger like the rest of our patients!” These are not simple puffery like “Look younger and feel better with Dr. Skin’s facial rejuvenation!” They claim and/or imply a claim that all patients will experience a specified improvement. 

#2 Overt or implied misrepresentations of material facts…

One example might be: “Dr. Ad is a Board-certified dermatologist” if in fact Dr. Ad is not actually Board-certified. Another example: “Dr. Ad completed the Board certification examination in dermatology” if Dr. Ad actually failed that examination. 

#3 Omissions of material fact…

The legal test of advertising should be whether, if required to do so, you could validate the claim that you are making or prove that what you are saying is something that a reasonable patient deciding where to go for dermatologic care would want to know about you and your practice. 

Potential penalties

The Federal penalties for false advertising can be a lawsuit by the FTC, a fine by the FTC or an injunction by the FTC against running the ad. 

If a dermatologist has run afoul of the FTC then he/she can expect the state board of medical examiners to take action as well. 

The state may act pursuant to an FTC action or may act on its own on the basis of a complaint. A complaint could come from a member of the public or a patient. State sanctions can include fines or the medical board bringing a disciplinary action against a dermatologist’s license. 

State law may also permit patients to sue for damages resulting from a false or deceptive advertisement. This, of course, is separate and distinct from malpractice, which addresses the care itself. The advertisement-based claim goes to the inducement to seek the care in the first place.

State statutes tend to look at the limitations on physician advertising conduct in ways that tend to be common. They will usually address such matters as “false, fraudulent, deceptive or misleading material or guarantees of success,” “statements which play upon the vanity or fears of the public,” and “statements which promote or produce unfair competition.” 

States also differ on the issue of patient testimonials, which physicians generally like to include in their advertising.

For example, Illinois has a flat ban on patient testimonials, but in Texas a testimonial is only a problem if it “includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial.”

Even if a dermatologist is in a state that permits patient testimonials in ads, keep in mind the AMA Code of Medical Ethics, which requires that “objective claims regarding experience, competence, and the quality of physicians and the services they provide may be made only if they are factually supportable. Similarly, generalized statements of satisfaction with a physician’s services may be made if they are representative of the experiences of that physician’s patients.” 

Also there are HIPAA and state confidentiality laws that require an express authorization to use what is, of course, Protected Health Information.

In all cases it is critical to take into account the intended geographic scope of the ad. If it will cross state lines then every state it is intended to reach must have its rules satisfied. 

Finally, when contracting with a marketing consultant or advertising agency a dermatologist should insist the service agreement state that the advertisement they create will comply with all applicable federal and state laws. 

Dr. Ad, and all dermatologists need to be careful that their advertising is not designated as being deceptive.