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Jim Flynn: Health care ads are regulated, but be wary

By: Jim Flynn
January 28, 2018
0
photo - Jim Flynn - Business (2013)
Jim Flynn - Business (2013) 

Advertising by lawyers, once prohibited, is now allowed as a right of free speech. Lawyer advertising is, however, still subject to ethical rules governing the legal profession and other, more general, rules prohibiting deceptive commercial statements.

But what about health care advertising? After seeing the proliferation of health care-related ads on television, in print media, over cellphones and on the internet (some of which take bait-and-switch to a new level), I started asking myself: Who's in charge here? What are the rules, if any, governing advertising by doctors, dentists, chiropractors, nurse practitioners, physical therapists, hospitals, acupuncturists, drug companies, joint replacement manufacturers, vitamin purveyors, pharmacies, witch doctors and the like? After a bit of research, here's what I found.

First, this is a hugely complicated subject. Doctors, dentists and all others involved in the business of health care have, like lawyers, a First Amendment right to advertise.

However, as with lawyers, their advertisements cannot be deceptive. Deceptive advertisements for health care products and services are prohibited under a multitude of federal and state laws and regulations, and lawyers and other consultants can (and do) make a good living providing compliance advice.

At the federal level, several agencies have authority over health care advertising. This includes the Federal Trade Commission, which has first chair authority for over-the-counter drugs and dietary supplements.

(Last year, the FTC sued a large company for deceptive advertising in the sale of wrinkle elimination, weight loss and muscle building products. "Look 10 years younger in 4 weeks!")

Also at the federal level, the Department of Health and Human Services has the right to revoke participation in federal health care programs (think Medicare and Medicaid) as punishment for deceptive advertising.

And the Food and Drug Administration, an agency within the Department of Health and Human Services, strictly regulates advertisements for prescription drugs and, to a lesser extent, medical devices. The FDA also controls labeling for over-the-counter drugs and dietary supplements. The Department of Agriculture has authority over food item claims (fat-free milk, low sodium potato chips, vitamin enriched organic donuts).

State attorneys general can bring legal actions against anyone making deceptive health care-related claims. In addition, agencies granting health care licenses have authority to issue and enforce regulations affecting advertising.

For example, the Colorado Medical Board has a regulation prohibiting any advertising that is "misleading, deceptive or false." This includes advertising that "creates an unjustified expectation or guarantees satisfaction or a cure" or uses "unsubstantiated testimonials." The Colorado Dental Board has a similar regulation. Licensing agencies have authority to discipline violators, including the big stick of license revocation.

New players on this stage are media companies (Facebook, Google, MSN) that sell advertising. Probably for their own protection more than yours, these companies are creating and enforcing truth in advertising rules, and they sometimes even use real human beings to look for violators.

Bottom line, health care advertising is highly regulated. Whether such regulation is truly effective in shutting down ads that are false, misleading or otherwise deceptive is another matter.

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Jim Flynn is with the Colorado Springs firm of Flynn & Wright LLC. You can email him at moneylaw@jtflynn.com or via his website, jtflynn.com.

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