We recap the do’s and don’t’s of medical advertising, so you can ensure you avoid harsh penalties, while still bringing patients through your doors.

With cosmetic enhancement becoming more commonplace in Australia, it becomes increasingly important to stand out from the competition. However, medical advertising can be a slippery slope and it is essential to keep within the guidelines and avoid hefty fines and penalties.

Common advertising issues in the medical market

The Australian Health Practitioner Regulation Agency (AHPRA) works in partnership with the National Boards under the Health Practitioner Regulation National Law, as in force in each state and territory (the National Law) to provide a comprehensive guide to what is acceptable and legal in marketing and advertising by medical practitioners.

The relevant section of the National Law states that health services must not be advertised in a way that:
• Is false, misleading or deceptive or is likely to be misleading or deceptive.
• Offers a gift, discount, or other inducement to attract a person to use the service or the business, unless the advertisement also sets out the terms and conditions of the offer.
• Uses testimonials or purported testimonials about the service or business.
• Creates an unreasonable expectation of beneficial treatment.
• Directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

The Australian Competition and Consumer Commission (ACCC) is the Federal Government regulator looking after the interests of consumers and competition in the Australian marketplace. It administers the Competition & Consumer Act 2010 and this act contains the Australian Consumer Law (ACL), which applies to the commercial practices of any person, company or business in Australia.

It covers issues such as misleading and deceptive conduct, misrepresentation and false representation of services and costs, and unconscionable conduct.

The ACCC states: “Patients can be physically, psychologically or financially affected by misleading conduct, and these effects can be long lasting. It is essential that patients be given honest, accurate and complete information in a form they can understand.”

The ACCC lists the most common problems with medical advertising as:
• Exaggerations or claims that cannot be substantiated
• Advertisements requiring or suggesting self-diagnosis
• Use of titles and qualifications
• Claims about price and/or cost
• Claims about time, eg how quickly patients can expect results
• Disclosure of conflicts of interest.

The ACCC has provided tips on how to avoid being misleading and deceptive when advertising:
• Sell your professional services on their merits
• Be honest about what you say and do commercially
• Look at the overall impression of your advertisement.

The possible consequences of breaching advertising provisions include a finding of unprofessional conduct, which could lead to the cancellation of the doctor’s registration. Doctors may have to face court, pay fines, penalties or damages, refund money or run corrective advertising.

However, the ACCC says the most significant costs to a professional who breaches the act are lost practitioner and staff time, legal costs and “loss of a hard-won professional reputation”.

Many complaints about medical and health services advertising arise from the use of exaggerated claims that cannot be substantiated. It is clear that no medical procedure can be considered risk free, painless or 100 percent effective. It is not always possible to successfully predict the outcome of medical and health services as individuals may react differently to procedures, and there are many factors that will affect outcomes. In addition, medical and health services that involve surgical invasion or administration of drugs will always involve some risk.

In the context of many medical and health services, using unequivocal terms such as ‘painless’ or ‘virtually painless’, ‘no risk’ and ‘guaranteed’ exploits the disparities in information between consumers and service suppliers and promotes unrealistic expectations. These claims cannot usually be substantiated by reliable and objective evidence. Particular care needs to be taken with the use of phrases that understate risks or pain levels, or overstate results or effects.

These guidelines apply to any person who advertises a regulated health service or a business that provides a regulated health service, including registered and non-registered health practitioners, individuals and bodies corporate. They cover all types of advertising, including social media, blogs and websites.

Advertising guidelines

Given the significant penalties for ads that contravene the guidelines (jointly developed by the national boards under s.39 of the National Law) for the advertising of regulated health services, health practitioners should know the guidelines before publishing any type of advertising.

Advertising may contravene the National Law when it:
• Encourages a person to improve their physical appearance together with the use of phrases such as ‘don’t delay’, ‘achieve the look you want’ and ‘looking better and feeling more confident’
• Provides a patient or client with an unsolicited appointment time
• Uses prizes, bonuses, bulk purchases, bulk discounts or other endorsements to encourage the unnecessary consumption of health services that are unrelated to clinical need or therapeutic benefit
• Uses promotional techniques that are likely to encourage consumers to use health services regardless of clinical need or therapeutic benefit, such as offers or discounts, online/internet deals, vouchers, and/or coupons, and/or
• Makes use of time-limited offers which influence a consumer to make decisions under the pressure of time and money rather than about their health care needs.
• An offer is considered time-limited if it is made to purchase for a limited or specific period of time, or available for use within a limited period of time or by a specific date, without an option to exit the arrangement.

Social media influencers

Described as our ‘future media owners’, social commentators promote products through online social channels with the intent of influencing consumer purchasing decisions. However, there are issues that revolve around the premise of reward-based promotion. There has been a recent amendment by the Australian Association of National Advertisers (AANA) which incorporates a new obligation for advertising to be ‘clearly distinguishable’ advinto its Advertiser Code of Ethics.

The amendment, which was effective 1 March 1, 2017, impacts agencies and the brands they represent in circumstances where social influencers (which include individuals and social audiences, journalists and bloggers) are engaged by or on behalf of brands for advertising and marketing communications purposes.

Whether or not the product is overtly or subtly promoted by an influencer, influencers do not always disclose that they have been rewarded or honestly believe what they are posting to their audiences. If the impression of the audience is that the post is genuine, organic, unscripted and without any underlying reward base, when it in fact was a reward-based marketing communication, it will fall close to the misleading or deceptive conduct line and a breach of the Australian Consumer Law.

To remedy this, disclosure by a specific call out in the post or perhaps #spon, #ad, #ambassador, or similar will dismiss any misleading or deceptive effect.

It is now increasingly popular for brands and their agencies to use social influencers as a marketing communications channel. As such, it becomes crucial that their influence is used in such a way so as to enhance the brand and its products and not result in negative backlash or, even worse, legal liability under the ACL.

Advertising and social media

Individuals and organisations are embracing user-generated content, such as social networking, personal websites, discussion forums and message boards and blogs.

Whether an online activity is able to be viewed by the public or is limited to a specific group of people, health professionals need to maintain professional standards and be aware of the implications of their actions, as in all professional circumstances.

AHPRA has recently released a new social media policy, with the key message that health practitioners must be aware that their professional obligations apply to their online activities in exactly the same way as a face-to-face consultation with a patient.

When using social media, health practitioners should remember that the National Law, their National Board’s code of ethics and professional conduct and the Advertising Guidelines (under section 39 of the National Law) apply.

When using sites and apps such as Facebook, Instagram and Snapchat, health professionals must ensure that patient confidentiality is not breached. For example, a cosmetic practitioner cannot post unauthorised ‘before and after’ photographs of a patient on a Facebook page. The new social media policy makes it very clear that this conduct is unacceptable, even if the social networking site has the highest possible privacy settings in place.

Likewise, a cosmetic surgeon cannot post a testimonial on his or her Facebook page from a former patient. This means that a Facebook page or Twitter account is no different to a health practitioner’s own website for the purposes of advertising health services.

A testimonial is defined in the updated guidelines as a ‘positive statement’ that may include a recommendation or a patient’s personal experience with a practitioner or a health service.

The updated guidelines take a very broad approach to the ban on the use of testimonials, including the following requirement:

‘A practitioner must take reasonable steps to have any testimonials associated with their health service or business removed when they become aware of them, even if they appear on a website that is not directly associated and/or under the direct control or administration of that health practitioner…this includes unsolicited testimonials’.

The guidelines make it clear that health practitioners are responsible for the content on social networking pages that they control or administer. This standard applies regardless of who posted the content. This means that health practitioners are required to remove a testimonial or any other content from their own social networking page if it breaches the updated advertising guidelines or the National Law.

Facebook advertising regulations

Facebook’s Advertising Policies provide guidelines about which ads are acceptable and unacceptable on the site and app. When advertisers submit their ads, these ads are reviewed against Facebook’s policies.

During the ad review process, Facebook checks your advert’s images, text, targeting and positioning, in addition to the content on your advert’s landing page. Your advert may not be approved if the landing page content isn’t fully functional, doesn’t match the product/service promoted in your advert or doesn’t fully comply with their advertising policies.

For example, in terms of advertising personal health, Facebook outlines that adverts must not contain “before and after” images or images that contain unexpected or unlikely results. Advert content must also not imply or attempt to generate a negative self-perception in order to promote dietary, weight loss or other health-related products. Adverts for health, fitness or weight loss products must be targeted to people aged 18 years or older.

In terms of personal attributes, adverts must not contain content that asserts or implies personal attributes.

This includes direct or indirect assertions or implications about a person’s race, ethnic origin, age and medical condition (to name but a few).

Advertising medicines to consumers

The TGA is responsible for regulating therapeutic goods including medicines, medical devices, biologicals, blood and blood products to ensure advertisements are socially responsible, truthful, appropriate and not misleading.

If the advertising only comprises pricing for prescription-only (Schedule 4 and 8) and certain pharmacist-only (Schedule 3 of the Poisons Standard) medicines, then the advertisement must comply with the Therapeutic Goods Act 1989, Therapeutic Goods Regulations 1990, the Therapeutic Goods Advertising Code 2007 and the Price Information Code of Practice.

Only non-prescription medicines – over the counter and non-prescription complementary medicines – can be advertised to consumers. Prescription medicines can only be advertised to health professionals.

When advertising therapeutic goods, the sponsor needs to be mindful of the following:

Only those indications accepted for inclusion in the Australian Register of Therapeutic Goods (ARTG) for the products may be advertised.

Products containing ingredients specified in Schedules 3, 4 or 8 of the current Poisons Standard cannot be advertised to consumers unless in the case of Schedule 3 medicines the ingredients appear in Appendix H of the current Poisons Standard.

Advertisements for medicines appearing on television or radio, newspapers, consumer magazines, billboards and cinema films need approval before publication. If the advertisement is in a magazine or newspaper, the approval number must appear in the advertisement.

Advertising prices

Any information about the price of procedures in advertising of regulated health services must be clear and not misleading.

It is often difficult to provide an accurate price for a regulated health service in an advertisement due to the individual nature of services and the number of variables involved in the treatment.

If fees and price information are to be advertised, then price information should be clear, with all costs involved and out of pocket expenses clearly identifiable, and any conditions or other variables to an advertised price or fee disclosed. This is to avoid misleading consumers and ensure they are fully informed and able to provide their full consent about health services.

Use of phrases like ‘as low as’ or ‘lowest prices’, or similar words, phrases or questions when advertising fees for services, prices for products or price information, or stating an instalment amount without stating the total cost, may be misleading and could breach National Law.

Credentials

Practitioners who are considering the use of titles, words or letters to identify and distinguish themselves in advertising are encouraged to ask themselves the following questions:

• Is it appropriate for me to use this title, qualification, membership, words or letters in advertising material?
• Am I skilled in the services I am advertising?
• If I display or promote my qualifications in advertising materials, is it easy to understand?
• Is there any risk of people being misled or deceived by the words, letters or titles that I use?
• Is the basis for my use of title, qualification, membership, or other words or letters relevant to my practice, current, verifiable and credible?

Individual practitioners, professional associations, regulators, community and consumer organisations and governments all have a role in informing and educating consumers about medical and health services. By ensuring you and your practice remains on the right side of the law, you’re not only protecting your reputation but also the safety, trust and assurance of the consumer.