Integrative medicine advertising legal review: does a flyer need legal review or just “wordsmithing?”

Integrative medicine advertising legal review: does a flyer need legal review or just “wordsmithing?”


A Flyer By Any Other Name

All marketing needs legal compliance review.  Many issues can arise; it’s not simply a matter of “checking the words.”

For example:

Healthiest Health, Inc. is a multidisciplinary, integrative care center that has medical doctors working alongside chiropractors, acupuncturists, massage therapists, Reiki healers, nutritionists, and practitioners of homeopathy and aromatherapy.

Healthiest Health also offers cooking classes and has a brick-and-mortar store on site, selling dietary supplements.

Healthiest Health asks for legal review of its brochure, which is duplicated in Web copy.  Healthiest Health is concerned about an ongoing investigation of its  closest competitor across the street, which involves allegations of violations of state advertising law.

MSOs Must Be Careful About Branding

Medical management services organizations (MSOs) must be careful about branding, because regulators can look to their marketing materials for evidence of corporate practice of medicine (and its regulatory evil twin, fee-splitting).

In California, the California Medical Board likes to see advertising controlled by the medical doctor, not by the MSO.

The California Medical Board, in its webpage on Corporate Practice of Medicine, states that an MSO violates the corporate practice of medicine when it is “arranging for, advertising, or providing medical services rather than only providing administrative staff and services for a physician’s medical practice.”
So our healthcare legal team typically recommends that any MSO marketing an integrative care clinic do the following:
  • The MSO should clearly state that it is functioning as a management company.
  • On the website, flyer, and in marketing materials, the MSO should effectively co-brand with the MD.  In other words, the MD must be mentioned, clearly and conspicuously.
  • If the integrative care center is structured such that each clinician is essentially a tenant, paying for subleased space and paying the MSO for management and marketing services, then the MSO should clarify that the Center is a practice location for the listed healthcare professionals.  This is a different model than a practice location where all the clinicians are employees of the professional medical corporation.  (In past posts, we’ve called the first model the “Center Model” and the latter the “Mall Model.”  Thanks to attorney, colleague and mentor Alan Dumoff for that terminology.)
  • In the advertising, the MSO should state the first and last names of the clinicians and their professional titles (for example: MD, PT, DC, LAc, CMT, RN, LPN, and so on).
Watch Out For State Laws About Physician Advertising

In addition to prohibiting false and misleading advertising generally, many states actively regulate physician advertising, as well as advertising by other licensed healthcare practitioners.

For example, California Business & Professions Code Section 651states California law governing advertising of healthcare services.  Among other things, any “false, fraudulent, misleading, or deceptive statement, claim, or image” is prohibited. 

Regarding the physician specialties (such as neurology),state law can also be explicit.  For instance, California Business & Professions Code Section 651 provides that advertising by a healthcare licensee may include:

A statement that the practitioner is
certified by a private or public board or agency or a statement that the practitioner limits his or her practice to specific fields.

Also, a physician

may include a statement that he or she limits his or her practice to specific fields, but shall not include a statement that he or she is certified or eligible for certification by a private or public board or parent association, including, but not limited to, a multidisciplinary board or association, unless that board or association is (i) an American Board of Medical Specialties member board, (ii) a board or association with equivalent requirements approved by that physician and surgeon’s licensing board, or (iii) a board or association with an Accreditation Council for Graduate Medical Education approved postgraduate training program that provides complete training in that specialty or subspecialty. A physician and surgeon licensed under Chapter 5 (commencing with Section 2000) by the Medical Board of California who is certified by an organization other than a board or association referred to in clause (i), (ii), or (iii) shall not use the term “board certified” in reference to that certification, unless the physician and surgeon is also licensed under Chapter 4 (commencing with Section 1600) and the use of the term“board certified” in reference to that certification is in accordance with subparagraph (A). A physician and surgeon licensed under Chapter 5 (commencing with Section 2000) by the Medical Board of California who is certified by a board or association referred to in clause (i), (ii), or (iii) shall not use the term “board certified” unless the full name of the certifying board is also used and given comparable prominence with the term “board certified” in the statement.

There are regulations as well as statutes,  For instance, 16 California Code of Regulations (“CCR”) 1363, which provides: “A licensed
physician may advertise the provision of any medical services authorized to be provided by such license in a manner authorized by Section 651 of the code so long as such advertising does not promote the excessive or unnecessary use of such services.”

All Healthcare Advertising Must Have a Reasonable Basis

Have a reasonable basis for any express or implied claim you make (for example, “immediate appointments”), so that the statement is not false, deceptive or misleading, and that it does not create an unreasonable expectation of patients.

All advertising claims must have a reasonable basis (or, put another way, must be substantiated by evidence), or they will be considered unfair and deceptive under federal law.

As to what constitute a “reasonable basis,” that depends on: the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation experts in the field believe is reasonable.

Compliance is Asymptotic

This is for the geek in all of us.

An asymptote is a line or curve that approaches a given curve arbitrarily closely, as illustrated in the above diagram

And by the way, thanks to my high school calculus teacher at Andover High School in Bloomfield Hills, Michigan.  You know who you are.  I was a difficult student, acting out in unfathomable ways–including co-writing a parody about you, after a Sylvia Plath poem.  Never has +C been so richly satirized.

Anyway, compliance is asymptotic.

I’m a writer–and trained in Ericksonian hypnotherapy–so I can’t help putting in metaphors.  I wrote a client:

remember that compliance is not a yes/no, pass/no pass, black-and-white target, but an asymptotic goal.  When it comes to enforcement, regulatory authorities have considerable discretion.

You get the point.

You may never get 100% compliance–but you can manage risk wisely, with the aid of your legal advisor.

Wrapping Up

Let us know if you need legal review of your marketing materials or physician advertising or MSO’s online marketing.  What you don’t know, can hurt.  Compliance pays off–notwithstanding Heisenberg’s uncertainty principle.

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Michael H Cohen Healthcare & FDA Lawyers

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