Advertise with Caution: State laws restrict how physicians can market themselves

In this economy, investing in advertising as a way to increase profits is an attractive idea. But, before you reach out to a marketing firm, let me tell you about a recent scenario that happened to one of my physician clients.

Dr. M (name concealed for anonymity) recently decided to undertake marketing efforts in an attempt to increase his patient base and enhance business. As part of these marketing activities, Dr. M retained the services of an advertising agency to develop a campaign that would appear in newspapers. When Dr. M 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 in the law. I urged Dr. M to have me review the advertisements before they were published to ensure that none were in violation of applicable state and federal laws.

Federal Restrictions

Advertisements by physicians are legal under the Federal Trade Commission Act, provided such 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 and, thus, not false, deceptive or misleading:

• Does the advertisement contain material false claims or misrepresentations of material fact?
• Does the advertisement contain material implied false claims or implied misrepresentations of material fact?
• Are there any omissions of material fact from the advertisement?
• Are you able to substantiate material objective claims and personal representations made in the advertisement?

In the event that your advertisement is found to be false, deceptive or misleading, you may be sued by the Federal Trade Commission (FTC) for disseminating such an advertisement to the public. Further, the FTC may fine you and enjoin you from disseminating the advertisement in the future. Perhaps most detrimental in this situation are the enforcement powers of the applicable state medical board, which could sanction you for inappropriate advertising as promulgated by the relevant medical practice act. Such sanctions could include fines, probation and, in egregious cases, suspension of your license.

State Laws

Generally, state laws also prohibit physician advertisements that are false, misleading or deceptive. In Illinois, for example, advertisements by physicians cannot contain “false, fraudulent, deceptive or misleading material or guarantees of success, statements which play upon the vanity or fears of the public, or statements which promote or produce unfair competition.”