As the public is inundated with marketing regarding prescription drugs, many chiropractors wonder about the scope of permissible advertising for natural health care products and services. Because advertising can give rise to claims in lawsuits and regulatory proceedings, doctors should take care to ensure advertising complies with federal and state-specific laws.
U.S. and State Constitutions
Health care providers have a constitutionally protected right to engage in commercial speech under the First Amendment to the United States Constitution, which reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
These principles apply to states and their agencies, with commercial speech protected provided it does not concern unlawful activity and is not misleading. State constitutions further enforce rights to free speech and obligations to speak responsibly.
Practice Acts and Rules
Each state has practice acts governing practice of healing arts in the state. While there is variation, most practice acts govern treatment of patients in the state, as well as patients outside the state, by providers based in the state.
Practice acts vest authority in licensing boards to discipline licensees, up to and including license revocation, for defined unprofessional conduct. Included in the grounds for discipline are “false,” “misleading” or “unethical” advertising.
Such laws recognize that health care providers serve in a position of trust and are responsible to respect that trust in all interactions, including in any media. Accordingly, providers are responsible for advertising appearing in their name, even if they did not create it.
First, health care providers must only use authorized titles, and limit use of credentials to certain recognized credentials. Advertising must also be clear to the public as to the type of provider it is from and the provider’s credentials.
Advertising also may not create an unjustified expectation or guarantee a cure. Appropriate disclosures and informed-consent forms can help address such issues.
Finally, advertising must be truthful and providers must be able to substantiate advertised claims with valid research. Providers should review statements made in print, radio, video, websites, social media, or directly to ensure claims can be substantiated.
When reviewing material, consider whether peer-reviewed literature supports statements or claims, and eliminate material containing statements that cannot readily be substantiated. Licensing boards take an expansive view of advertising that is considered misleading, deceptive, false, or unethical.
Consumer Protection and Federal Trade Commission Acts
The Federal Trade Commission Act (FTCA) and state consumer protection acts (CPAs) also make it unlawful to disseminate or cause dissemination of any false advertisement. Such laws define false advertising to include that which is misleading in a material respect.
As with practice acts, the FTCA and CPAs require truthful advertising, subject to verification by current, reliable and objective proof. Violators of the FTCA are subject to fines and imprisonment; while CPAs provide for punitive damages.
Testimonials
Testimonials are subject to state and federal law prohibiting unsubstantiated testimonials. The FTCA provides specific guidelines concerning testimonials, including that they reflect experiences representative of what patients will generally achieve. Advertisers must be able to substantiate that a significant portion of patients will achieve similar results.
Testimonials may not contain representations that are deceptive or cannot be objectively substantiated. Testimonials may only involve a patient personally treated; and require the ability to substantiate any attestation. They should also note that results may vary and must disclose any compensation.
Testimonials also should be current (within the past few years). Readily available information must be maintained to substantiate testimonials as representative of actual practice.
Practices should maintain a signed copy of any testimonial demonstrating that it is true and that the patient provided permission to publish pursuant to a HIPAA-compliant authorization. It is good to video record a person reading their testimonial, as it is harder to challenge a testimonial that a person has read out loud and affirmed on camera.
A Final Note
To ensure advertising is compliant, providers should have their website and other marketing materials periodically reviewed by counsel knowledgeable in their state’s particular laws. To find counsel in your area, check with your state association or the NACA listing at https://nacattorneys.com/.
Editor’s Note: This column by the National Association of Chiropractic Attorneys (NACA: https://nacattorneys.com/) features legal updates as they relate to chiropractors. For previous articles, visit the NACA online columnist page.
