FTC Regulations You Must Know for Healthcare Advertising
I’m going to explain some key legal traps in your marketing that you might be unaware of as a healthcare practice or healthcare company, and i am going to talk about some ways you might be able to mitigate your legal risk.
Lots of physicians and healthcare companies have had us reviewed their marketing materials, and inevitably, we’ve quickly spotted gaping holes where they’ve left themselves vulnerable to liability or regulatory exposure.
The first thing you need to know is that anytime you post anything at all online or in print, you are subject to state and federal law governing advertising.
That’s anything at all, at a minimum your advertising must be “truthful” and “non misleading.”
Now, that seems easy enough, everyone knows to be honest, right? But take the case of a retailer who put a big sign in the window that said, “40% off.”
And guess what, one customer went up to the window, pointed to an item, and the one they wanted was not on sale. And the clerk at the cash register said, “I’m sorry sir, that particular item is not 40% off.” Well, many months and probably tens if not hundreds of thousands of dollars in litigation fees later, the company finds that it cannot correct its promise of 40% off at the point of sale, and that its annual profits have been ravaged by claims of false advertising.
The last thing you want is an FTC enforcement action, or class action lawsuit.
Take the class action lawsuit where the key allegation was that a famously advertised “mushroom burger” didn’t contain the heaping quantity of mushrooms claimed by the advertiser.
So, for example, as we mentioned, there are layers and layers of false advertising law.
On the federal side, you have the FTCA, the Federal Trade Commission Act, which prohibits false and deceptive advertising generally and this applies to all goods and services, any advertising. So think of all your marketing materials, think about your website, think about print collateral, think about your advertising.
On the state side, you can have a variety of statutes, whether you’re in California, Delaware, New York, Wyoming, wherever you are.
Let’s take California, you’ve got Business & Professions Code 651 which prohibits false advertising by any licensed healthcare practitioner. This can include physicians, nurses, chiropractors, psychologists, social workers, acupuncturists, and others.
One of the provisions of California Business & Professions Code 651 is a prohibition against any advertising which: Makes a scientific claim that cannot be substantiated by reliable, peer reviewed, published scientific studies.
Are you promoting a supplement for weight loss? Some amazing therapeutic protocol? Perhaps some combination of modalities that has helped a lot of patients recover? You might have a good number of colleagues and peers who follow the same exact protocol, you might even be fine in terms of standard of care, even a challenge in a malpractice claim; yet, you might find yourself in regulatory hot water if the Board finds a 65 violation. This happened to a lot of our clients who came to us.
So remember, false advertising is a huge area of law and if you ran into a snag, even simply to have your marketing materials reviewed, contact us to get that legal review.
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