ETHICAL ADVERTISING GUIDELINES

ABFPRS Ethical Advertising Guidelines

The ABFPRS has endorsed the AMA’s Code of Medical Ethics on Advertising & Publicity. Further, the ABFPRS follows guidelines for ethical advertising and expects all diplomates to adhere to them so that patients are fully informed.

These guidelines provide general guidance. Laws and regulations in some states may differ from the ABFPRS guidelines, and physicians should review those laws and regulations as well.

Advertisements are communications in any medium that are disseminated by or at the behest of a physician for the purpose of soliciting, or encouraging the use of the physician’s services. There are no restrictions on advertising by physicians except those that can be specifically justified to protect the public from deceptive practices. Truthful advertisements can help patients select a physician by informing them about the skills, qualifications, services, location, and other important information about physicians. However, false, deceptive, or misleading advertisements may cause harm to patients.

Use of the ABFPRS logo in advertisements

Diplomates may not display the ABFPRS logo in their own advertisements, as it is a mark of what the ABFPRS does (certifying physicians) not what diplomates do (perform surgery). Misuse of the logo violates federal trademark regulations

Four Principles

Physician advertisements should follow four principles if they are to be truthful and not false, deceptive, or misleading. These are:

• Advertisements should not contain false claims or misrepresentations of material fact.
• Advertisements should not contain implied false claims or implied misrepresentations of material fact.
• There should not be knowing omissions of material fact from advertisements.
• Physicians should be able to substantiate material objective claims and representations made in an advertisement.

Applications of advertising principles

Generally, advertisements are more likely to comply with these principles if, from the perspective of a reasonable patient, they are easy to understand, free of obvious exaggerations and appeals to emotions, vulnerabilities, and clearly identifiable as advertising rather than news.

Here are guidelines for applying these rules to specific types of advertisements:

• Patient testimonials and endorsements. Testimonials should be made only by patients who actually received and benefited from the physician’s services. Furthermore, they should represent the experience that is typical of what other patients may expect. Endorsements by organizations or experts must be supported by an actual evaluation of the physician’s services conducted by the organization or expert.
• Pictures or images of a person. Whenever a model’s picture is used in a way that would suggest that the model received the services advertised, the advertisement should clearly and concisely state that the model has not received the advertised services. Patient photos should represent normal results rather than an atypical amount of relief. Photographs of patients taken after receiving services should use the same light, poses, and photographic techniques as photographs taken before surgery so as to accurately document the results of the services.
• Representations about quality of care. Statements about superior service are extremely difficult to verify or measure and should be made only if factually supportable.
• Safety, efficacy, and recovery periods. Statements assuring safety, effectiveness, and quick recovery may mislead patients who lack appreciation of the risks and adverse effects associated with medical and surgical treatments. Such statements should be made only if supported by scientific studies and representatives of the typical patient’s experience.
• Physician qualifications. Qualifications listed in an advertisement should substantiate the physician’s competence with respect to the services being advertised.
  • Board certification. Because patient’s are likely to assume that physicians who advertise their board certification have been subjected to a rigorous peer review of their education, training, and experience to perform advertised services, physicians should advertise board certification only if the certification is relevant to the services advertised and the organization conferring the board certification requires a thorough review of the physician’s fitness substantially similar to the criteria of well-recognized and authoritative organizations such as those sponsored by the American Board of Medical Specialties, or their equivalent. (The American Board of Facial Plastic and Reconstructive Surgery may be disclosed in all states, although one state [Oklahoma] requires the physician to make advance application.)
  • Supplemental training. Physicians should advertise continuing medical education only if it has led to new skills that supplement initial specialty training.
  • Claims of an exclusive or unique skill or remedy. It is unlikely that physician has a unique skill or remedy, although he or she may have such within a particular geographic area. Physicians who claim unique skills and remedies must be able to substantiate them.
  • Routine provision of services. Similarly, physicians must be able to substantiate any claims as to the frequency or number of times they provide a particular service.
  • Years of experience. If a physician includes his or her years of professional experience, this fact must be readily substantiated. If a physician couples this information with a list of procedures performed, patients will infer that these procedures have been performed for the durations of the physician’s years of professional experience, so advertisements should not couple this information unless it is true and can be substantiated.
  • Performance of a procedure. An advertisement should not state or imply that a particular physician might or will perform a particular procedure unless that is the case.
  • Medicare or Medicaid approval. Advertisements should not imply that procedures are approved or endorsed by federal Medicare or state Medicaid programs; however, they may advertise that a physician accepts Medicare or Medicaid patients.
  • FDA approval. Federal law requires that physician advertisements should not promote equipment, devices, or drugs used by the physicians as being approved by the federal Food and Drug Administration.
• Comfort, ease, and pain. Patients experience comfort, ease, and pain differently, and so claims that procedures cause little inconvenience of pain are difficult to substantiate. However, a physician may make such claims if the physician can document that this is the experience of his or her patients and likely to be the experience of patients generally.
• Fees and costs. Advertisements that include fees should indicate whether there may additional costs for related services, such as clinical laboratory services. Free services offered must in fact be free, rather than contingent on purchase of other services or reimbursable by a third-party payer. Representations that a physician will not balance-bill a patient above the fee allowed by the patient’s payer should not be made if the physician plans to bill the patient a co-payment amount or the full amount, if a patient’s payer denies coverage in full or in part.
• Location and conveniences. Useful information that does not generally raise concerns in physician advertisements includes the physician’s name, address, telephone number, hours of practice, schools attended, language or languages spoken, names of associations, hospitals or clinics with which the physician is affiliated, amenities available such as outpatient facilities, third-party payers accepted), and a statement as to whether the physician regularly accepts installment payments of fees or credit cards. Other useful information may include military service, posts of honor, teaching positions, or medical authorship.
• Medical society memberships. Advertisements may include medical society membership information so long as the physician has the membership claimed and the advertisement does not imply that the association has tested the knowledge or competence of the physician unless that is the case.
• Area of specialization. Physicians may advertise that they specialize in a particular area of medical practice, provided that the physician in fact has the education, training, experience, competence, and judgement necessary to practice the identified specialty.