FTC Revised Online Endorsement Guidelines

Unsure of What the New FTC Endorsement Guidelines Mean? Get Help Before the FTC Investigates. Here are Some Answers to Frequently Asked Questions

The Federal Trade Commission recently promulgated new guidelines for online endorsements of products and services. Hospitals, medical practices, and private doctors will pay a steep price for deceptive online marketing practices. Sellers of medical supplements and develops will have serious legal troubles if they oversell and overpromise. The FTC is now investigating endorsements and testimonials that mislead readers of websites and social media platforms.

Doctors, chiropractors, and other medical professionals and companies who fail to monitor their online presence may be forced to suspend their marketing activities if the FTC suspects consumers are being misled. A skilled FTC endorsement attorney can help your practice grow instead of being subject to investigations which can dramatically affect your practice.

The new guidelines have created a lot of confusion. Before doctors and health providers launch or promote medical websites and electronic marketing, the best course of action is to speak with an experienced FTC endorsement attorney. Sellers of medical devices and products should seek legal advice too.

To assist in trying to give doctors, medical marketers and others, the FTC has provided numerous questions and answers to sample situations and problems. Those Qs and As can be seen at the FTC website. the actual guides, called Guides Concerning the Use of Endorsements and Testimonials in Advertising.

The essence of the guidelines is that endorsements and testimonials should be honest and truly reflect the opinion or recommendation of the person lending their name to your practice. Claims must be legal. If an endorser has a relationship with the physician or marketer, that relationship/connection should be disclosed. Patients, vendors, other doctors, and anyone who views your website, or electronic communications should be able to determine how valuable the endorsement is. Readers of the website, social media post, or email should know if the endorser is an employee, a relative, or if someone who is being paid to give his endorsement.

Endorsements that make unusual claims, such as that their weight loss program helped someone lose 40 pounds in eight weeks, must be able to verity that such a positive result is generally expected for any user of the medical practice’s program.

Some of the FAQS posted on the FTC site

What follows is a summary of some of the questions posted on the FTC website. The set of questions and answers in this article focuses on the actual endorsements. Our next article will focus on the duties of the health provider to monitor their online marketing campaigns and online presence.

Some of the questions our next article will address include:

• What are the standards for soliciting endorsements?
• What duties does a medical practice have to monitor what others say about their practice?
• What are the rules for using intermediaries?
• What are the restrictions on expert endorsements?
• When can testimonials be used that don’t reflect a standard consumer experience?

The examples in both FTC endorsement lawyer articles have been adjusted for medical practices.

Do the guidelines apply to Facebook, Twitter, and other social media posts?

Yes. Social media helps promote your business. Many health spas, chiropractic offices, and other offices use Facebook, Instagram, Snapchat, and other social media platforms to get people interested in their practices. Advertising in all media forms (blogs, web content, television, radio, and magazines) must be true.

Does the FTC monitor blog writers?

The FTC doesn’t have the resources to monitor every word on every blog site. But they do respond to complaints. If a valid complaint is filed, the FTC may demand that the blog be corrected, be removed, or that appropriate disclaimers are made.

It is not a defense for health providers and their marketing team to argue that readers expect blogs to oversell medical services and medical products – or that bloggers get paid to give positive reviews. The new guidelines require that each blog must not mislead the reader.

Some blog writers post on their own site, not the medical site. Readers of these outside blogs often do understand that blog writers are giving their opinion. If the outside blogger has received a financial benefit from the health provider, a free health product, or a free service – then the outside blogger is required to disclose that benefit.

Generally, bloggers who review medical services or medical products and equipment don’t have to say they don’t have a connection to the medical provider. They do have to make a disclosure if they actually do have a connection. The blogger generally doesn’t have to say if he got a free sample, like other consumers, at a pharmacy for example. The blogger does have to acknowledge he/she got a free sample if the health provider approaches the blogger and says – please review my product in return for this free sample.

Generally, as long as the doctor or health provider doesn’t have a direct relation with the blogger, the health provider should be in compliance with the FTC guidelines. The FTC may independently begin enforcement actions against the blogger if the blogger is being deceptive. If the health provider seeks out bloggers or endorsements, then the provider should understand the do’s and don’ts of honest endorsements according to the new guidelines.

What is the FTC’s legal authority for creating the guidelines?

The FTC has the right to investigate deceptive advertising practices pursuant to the FTC Act Section 5. The guides are not laws. They are indicators of what the FTC thinks is improper. If the FTC believes a health practice is being dishonest in its online advertising it can bring law enforcement actions which require that the marketer act honestly and that the practice return money obtained through indecent endorsements. Lawsuits can be expensive. For example, the FTC settled one claim that a company created fake websites and deceptive practices for $2 million dollars.

What if the doctor donates to a charity anytime someone reviews their product?

As always, the guiding principle is to err on the side of telling the reviewer that there should be a disclosure of the donation by the reviewer

How do product placements of health services work?

Generally, the Federal Communications Commission (FCC) and not the FTC regulates product placement.

Do the endorsement guidelines cover individual endorsements on social media sites?

People who endorse your business on social networks should do it of their own free will. They shouldn’t be getting discounts or being paid to like your site, to share your posts, or to endorse your products on their Facebook, Twitter, or other accounts. As a practical matter, posters can announce disclosures on their sites. Liking an account on Facebook normally doesn’t leave room for a disclosure. If there isn’t a place for a disclosure, then it’s not a good practice to like a health provider’s posts.

Health providers who knowingly let people like or share their pages can be investigated for untruthful advertising. The FTC will generally not favor “fake” likes – likes that are made even though a user has never visited your office or used your services.

Is there a proper way for wording disclosures?

There’s no precise wording. Health providers should explain to endorsers that if they have a connection to their orthopedic practice, hospital, or clinic; that the disclosure should state in laymen’s language what the connection is.

• John Smith medical spa gave me three free Botox injections.
• The Sally Jones general practice discounted my first visit.
• The Voltare medical practice paid me to review their services.

Statements like that make clear the endorser has a connection. The reader then can weigh the endorsement and the connection together to determine how credible the recommendation is.

Health providers who aren’t sure about the wording should speak with an experienced FTC advertising lawyer.

Does a broad overall disclosure on my home page count?

No. Mainly because it’s unlikely readers will look to your home page to see if there’s a disclosure. Disclosures work best when they are near the endorsement. Different disclosures may be needed depending on whether the endorsement is part of your blog, a YouTube video post, an Instagram post, or another electronic method.

The FTC FAQ link includes a variety of examples for different mediums. For example, Twitter posts should begin with short words such as “#Ad,” “#Paid ad,” “#Sponsored,” or “#Promotion.” The hashtag # should be included.

Using one-word hashtags in blogs, such as “#client” and “#consultant” usually aren’t clear. Saying something like “I’m a paid consultant to the Sally Jones Chiropractic Association,” is better.

What other FTC online disclosure guidelines should medical marketers and healthcare providers know?

The guidelines do set forth the following specifics about disclosures:

• The disclosure should be “clear and conspicuous.”
• The language should be “plain and unambiguous.”
• The disclosure should be prominent
• Fonts should be easy to understand
• The disclosure should be close to where the endorsement or testimonial is

Disclosures on video ads should be simple to read and should be long enough that viewers notice it. The FTC even suggests that audio disclosures be read at an understandable cadence.

Disclosures shouldn’t be hard to find. They should be in the language viewers understand.

What are the basic rules for endorsing medical services or products?

Endorsements should truly reflect the experience of the endorser. You must have used the services or tried the medical product before you can endorse it. Even if you were paid to try a product, you still need to be honest. You can’t say you liked your doctor if you didn’t. Endorsers can’t make claims they know can’t be verified.

Understand FTC’s new Online endorsement law and save yourself a lot of valuable time and resources

• The FTC new endorsement guidelines apply to a broad range of electronic advertising
• Medical providers and medical companies can be forced to suspend their electronic advertising, pay fines and penalties, and lose money if their advertising is misleading or deceptive
• Endorsers who have a financial or personal relationship with a doctor, hospital, or health provider they endorse must disclose that relationship

Doctors and other providers need to make sure their marketing companies don’t mislead patients. Health providers need to be aware that getting endorsements come with a price – the need to monitor those endorsements. To understand what you, your marketing team, and advertisers can and can’t do, you need to speak with a respected FTC endorsement lawyer.

Before starting an online marketing campaign; hospitals, physicians, sellers of health products, and health providers should make sure they understand the new FTC online endorsement laws.

To understand your duties and best practices, contact FTC endorsement lawyer – Cohen Healthcare Law Group, PC. Our FTC attorneys understand the ramifications of the new guidelines.