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Wednesday
Oct062010

Medical Spa Advertising: Keeping it Legal - PART 2


State and federal regulations centering on medical spa advertising can often be daunting to navigate through.  How can you make sure your ads are within the “legal” realm?   Read on through Part 2 of Medical Spa Advertising - Keeping it Legal. 

Read: Medical Spa Advertising: Keeping it legal Part 1

The ever increasing number of State and Federal laws that can pertain to the use of photographs of patients has triggered a lot of questions from the medical community.  Below are some frequently asked questions and answers from Michael Sacopulos, General Counsel for Medical Justice Services.  Note these are general answers and are not State specific.  You should consult local licensed counsel to address laws, regulations and prohibitions specific to the State in which you practice.

Question #5: What concerns should I have if I want to implement an e-campaign to my database?

Answer: You will not be surprised to learn that there are specific Federal laws related to the use of e-mail campaigns for commercial purposes.  Specifically, the CAN-Spam Act sets forth the Federal requirements for those wishing to promote goods and services by e-mail.   Before you start to send those e-mails, check out the Federal Trade Commission’s website on this act:  http://www.ftc.gov/bcp/edu/tubs/business/ecommerce/bus61.shtm  

Question #6: What should I know before I start a Facebook account?

Answer: From the legal perspective, information that you place on Facebook is treated exactly the same as information that you would place on your practice’s website.  However, some have found Facebook to have a more intimate feel.  People tend to make statements and do things on Facebook that they might not otherwise do on a typical web page.  We have all read the accounts of individuals losing a job because of some posting on Facebook.  I recommend that you keep two separate Facebook accounts.  You may have one for your practice and one for personal use.  I believe it to be a mistake to mix your personal and professional activities in one Facebook account. 

Question #7: Can I give a referral patient a gift card to use towards services?

Answer: Yes.  Few problems arise from giving a gift card or a discount to a patient that has been referred to your practice.  It is more difficult to compensate patients for the promotion of your practice.  As we discussed above, should you wish to compensate a patient for the use of his or her before and after photographs on your website, this fact must be disclosed. 

Question #8: If all these are legal requirements, why don’t more doctors get prosecuted?

Answer: This sounds like a practical question from a risk taker.  The answer to this question rests in the limited resources for enforcement.  Most people driving above the speed limit don’t receive a ticket, but it is clearly a possibility every time someone exceeds the speed limit.  One more word of caution: The penalties for violating some of the rules and regulations described above can be quite harsh.  Your smartest move is to try to comply with all rules and regulations regarding online advertising.                 

One final word of caution about online advertising and the use of patient images…Many professional societies have ethical guidelines that members are to follow when advertising.  These guidelines may be stricter than State or Federal laws.  The AAFPRS has some well reasoned guidelines that should be known by members prior to initiating an advertising campaign.  Members of the ACS should consult that society’s Code of Professional Conduct which can be found at http://www.facs.org/fellows_info/statements/stoprin.html. The AMA has an extensive document entitled “Principles Governing Advertising in Publications of the American Medical Association” which provides guidance.  This document can be found at http:/pubs.ama-assn.org/misc/adprinciples.pdf .

Mr. Sacopulos is a practicing attorney in Indiana.  This article reflects his opinions and perspectives on advertising and legal issues set forth in this article. 

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