What a State Forbids a Licensed Clinician to Say in an Advertisement

Answer first: the rule binds the licensee, and it covers the internet

California Business and Professions Code section 651 states the prohibition in its first sentence. It is unlawful for any person licensed under the healing arts division, or under any initiative act referred to in that division, to disseminate or cause to be disseminated any form of public communication containing a false, fraudulent, misleading, or deceptive statement, claim, or image for the purpose of or likely to induce, directly or indirectly, the rendering of professional services or furnishing of products in connection with the professional practice or business for which he or she is licensed.

Two phrases decide its reach. Disseminate or cause to be disseminated brings in a licensee who did not personally publish the material. And the section defines the medium broadly: a public communication includes, but is not limited to, communication by means of mail, television, radio, motion picture, newspaper, book, list or directory of healing arts practitioners, Internet, or other electronic communication.

The other two states place advertising inside their unprofessional conduct lists rather than in a standalone section. Washington's RCW 18.130.180 lists, among the conduct constituting unprofessional conduct for any license holder under the chapter, all advertising which is false, fraudulent, or misleading. Virginia's Code section 54.1-2915 lists publishing in any manner an advertisement relating to his professional practice that contains a claim of superiority or violates Board regulations governing advertising, and separately lists performing any act likely to deceive, defraud, or harm the public.

In all three states the consequence runs to the credential rather than to a contract. California states it plainly: any violation of section 651 by a licensed person shall constitute good cause for revocation or suspension of his or her license or other disciplinary action, and any person so licensed who violates the section is guilty of a misdemeanor, with a bona fide mistake of fact available as a defense to that subdivision only.

California lists what counts as false, fraudulent, misleading or deceptive

Section 651 does not leave the standard at the adjective. It enumerates what a false, fraudulent, misleading, or deceptive statement, claim, or image includes.

A misrepresentation of fact. A statement or claim that is likely to mislead or deceive because of a failure to disclose material facts. A statement or claim that is intended or is likely to create false or unjustified expectations of favorable results.

It then applies that third item to pictures. The use of any photograph or other image that does not accurately depict the results of the procedure being advertised, or that has been altered in any manner from the image of the actual subject depicted, falls inside the prohibition. Use of any photograph or other image of a model without clearly stating in a prominent location in easily readable type the fact that the photograph or image is of a model is a violation, and a model is defined for that purpose as anyone other than an actual patient, of the advertising licensee, who has undergone the procedure being advertised.

Paired photographs carry their own conditions. Use of any photograph or other image of an actual patient that depicts or purports to depict the results of any procedure, or presents before and after views of a patient, without specifying in a prominent location in easily readable type size what procedures were performed on that patient, is a violation. Any before and after views shall be comparable in presentation so that the results are not distorted by favorable poses, lighting, or other features of presentation, and shall contain a statement that the same before and after results may not occur for all patients.

Three further categories close the list. A statement or claim relating to fees, other than a standard consultation fee or a range of fees for specific types of services, without fully and specifically disclosing all variables and other material factors. Representations or implications that in reasonable probability will cause an ordinarily prudent person to misunderstand or be deceived. A claim either of professional superiority or of performing services in a superior manner, unless that claim is relevant to the service being performed and can be substantiated with objective scientific evidence. A scientific claim that cannot be substantiated by reliable, peer reviewed, published scientific studies. And any statement, endorsement, or testimonial that is likely to mislead or deceive because of a failure to disclose material facts.

The price subdivision names the forbidden phrases

The most specific drafting in section 651 is in its price-advertising subdivision, and it is unusual for a statute to name marketing phrases outright.

Any price advertisement shall be exact, without the use of phrases, including, but not limited to, as low as, and up, lowest prices, or words or phrases of similar import.

That sentence forbids the exact construction that dominates online health pricing pages, when the advertiser is a licensee under California's healing arts division. The words or phrases of similar import clause prevents the rule from being defeated by a synonym.

Comparisons carry an evidentiary requirement. Any advertisement that refers to services, or costs for services, and that uses words of comparison shall be based on verifiable data substantiating the comparison, and any person so advertising shall be prepared to provide information sufficient to establish the accuracy of that comparison.

The subdivision then bans a set of tactics. Price advertising shall not be fraudulent, deceitful, or misleading, including statements or advertisements of bait, discount, premiums, gifts, or any statements of a similar nature.

And it requires the price to be attributable and inclusive. In connection with price advertising, the price for each product or service shall be clearly identifiable. The price advertised for products shall include charges for any related professional services, including dispensing and fitting services, unless the advertisement specifically and clearly indicates otherwise.

That last requirement inverts a common pattern. Under this section, the default is that an advertised product price carries the associated professional services with it; separating them is permitted only if the advertisement says so specifically and clearly.

Paid publicity, and the credentials a licensee may claim

Section 651 addresses a form of promotion that does not look like an advertisement at all.

Any person so licensed shall not compensate or give anything of value to a representative of the press, radio, television, or other communication medium in anticipation of, or in return for, professional publicity, unless the fact of compensation is made known in that publicity.

The disclosure has to appear in the publicity itself, not in a separate policy page. And the trigger is anything of value, not only money.

The section also restricts a licensee's professional identifiers. A licensee may not use any professional card, professional announcement card, office sign, letterhead, telephone directory listing, medical list, medical directory listing, or a similar professional notice or device if it includes a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of the enumerated list.

It then sets out what advertising by a licensee may include, which functions as a safe list: a statement of the practitioner's name; addresses and telephone numbers of the offices maintained; office hours regularly maintained; languages other than English fluently spoken by the practitioner or a person in the practitioner's office; and a statement that the practitioner is certified by a private or public board or agency, or that the practitioner limits his or her practice to specific fields.

The certification item is the most heavily conditioned. For a physician and surgeon licensed by the Medical Board of California, the section permits a statement limiting practice to specific fields, but prohibits a statement of certification or eligibility for certification by a private or public board or parent association unless the body is a member board of the American Board of Medical Specialties, a board or association with equivalent requirements approved by the licensing board before a stated date, or a board or association with an accredited postgraduate training program providing complete training in that specialty or subspecialty. A physician certified by an organization outside those categories shall not use the term board certified in reference to that certification, subject to a narrow cross-licensure exception. And a physician certified by a qualifying body shall not use the term board certified unless the full name of the certifying board is also used and given comparable prominence with the term.

What a reader can actually do with this

The practical value of a state advertising statute is that it turns some marketing questions into checkable ones, at least where the advertiser is a licensee of that state.

If a photograph of a person appears beside a claim about results, section 651 asks whether the image is of an actual patient of the advertising licensee, whether a model is identified as a model in a prominent location in easily readable type, whether the procedures performed are specified, whether the before and after views are comparable in presentation, and whether the required statement that the same results may not occur for all patients is present.

If a price appears, it asks whether the figure is exact, whether phrases of the as low as family have been used, whether the price for each product or service is clearly identifiable, and whether related professional services are included or the advertisement specifically and clearly indicates otherwise.

If a comparison or a scientific assertion appears, it asks whether verifiable data substantiates the comparison, and whether a scientific claim can be substantiated by reliable, peer reviewed, published scientific studies.

If a favorable article or segment appears, it asks whether anything of value was given in anticipation of or in return for that publicity, and if so whether the fact of compensation was made known in the publicity itself.

Four limits are worth stating. Section 651 binds persons licensed under California's healing arts division, and this file makes no claim about a marketer who holds no such license. Washington and Virginia reach advertising through their unprofessional conduct lists, which are worded differently and are not interchangeable with California's. The consequence in all three states runs through a licensing body, not through a personal remedy stated in these texts. And nothing here characterizes any actual advertisement or advertiser.