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Wednesday
Sep082010

Medical Spa Photographs & Testimonials: Keeping it Legal

Medical Spa ads are often peppered with photos (highlighting “real” patients and models) and glowing testimonials.   

Images of more than ideal treatment results from Botox, laser hair removal, fillers, chemical peels, photofacials grace local rags to targeted online ad placements…okay, you get the picture. 

A recent article stated that there are now more medical spas in the US than Starbucks!  Now, that makes for a very competitive market. 

As you strategically, aggressively advertise your Medical Spa – are you aware of the legal guidelines & do you know how to keep your advertising legal? 

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 #1:

When do I need to use the label “MODEL” on a photograph?

Answer:

The term “model” should be used when the photograph is displaying the results of a procedure or procedures not performed by the physician or practice (displaying the photograph).  Here the term “model” is being used in a general representative fashion and is not being used to display a specific practice or physician’s professional services/results. 

Physicians should secure a written release from any individual, patient, or model before using a photograph of that individual, patient, or model in any way.  The release should be specific to the photographs being used.   The release should also specify the way or ways that the photographs may be used.  For example, a release “for educational purposes”, will not cover internet marketing.  Do not attempt to get a release signed that covers “any and all future images, photographs or depictions…”  Courts have ruled that releases can go stale.  Finally, it is best for the release to specify the conditions and manner by which an individual may revoke the release at a later date.  

Question #2:

I hear the use of testimonials has regulations. Please explain.

Answer:

There are several sources of regulations over the use of patient testimonials.  Some state licensing boards greatly restrict or prohibit testimonials.  Each state has different standards; some flexible, some very restrictive.  The Federal Trade Commission also has rules that apply to the posting of testimonials.  In general, a physician should make sure that the testimonial is accurate (what the patient really said and not paraphrased).

Question #3:

What does HIPAA have to say in its marketing regulations about the use of “before and after” photographs and testimonials?

Answer:

HIPAA in general protects patient privacy.  Although the act does many things, it would prohibit the use of before/after photographs without a patient’s permission.  However there is nothing in the act that would prevent the use of accurate before and after photographs with a patient’s prior approval.  As always, this approval should be documented.  Finally, it should be made clear that a patient can withdraw his or her approval to use the photographs at a later date and that the physician must comply with this subsequent withdrawal of approval.

Question #4:

What is this I am hearing about The Federal Trade Commission in regards to “results not typical” and endorsements?

Answer:

Earlier this year, The Federal Trade Commission set forth new guidelines for the use of testimonials and advertising that apply to many areas including healthcare.  In the past, The Federal Trade Commission has taken action against certain weight loss products when these products were advertised by an individual claiming extreme weight loss.  The FTC’s position was that it is a deceptive trade practice to show an individual has lost 100 lbs. when this result is not at all representative of a typical patient’s outcome.  In this situation, the term “results not typical,” would need to be used.  Under the new regulations, we should expect that the FTC will take a similar approach.  My discussions with FTC officials have led me to believe that the Commission acknowledges that health care results vary.  The Commission’s goal is to see that potential consumers are not misled by advertising.  It is not advisable to select a statistical outlier to be representative and then try to protect it by adding the term” results may vary.”  Under the new FTC rules, you must also disclose the fact if an individual has received compensation (of any amount) or discounted services in exchange for providing a testimonial or endorsement. 

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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Reader Comments (1)

Curious to know how your practice safeguards before and after pictures on your website?

12.6 | Unregistered Commentermmaccabe

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