By Patrick O’Brien, JD

Advertising is one of those areas that is deceptively simple in concept but maddeningly complicated in execution. The concept is that by using a combination of words and images, you entice people to buy your “product,” such as becoming a patient of your medical spa. This article isn’t a comprehensive look at all the complications that go into a successful marketing campaign—that information would fill several books. Instead, it will cover some of the issues and restrictions medical spa advertising runs into because of the practice of medicine.

As you well know, medical spas are typically staffed or owned by licensed health care professionals who are governed by their licensing boards and are expected to follow codes of professional or ethical conduct. In one form or another, every licensing board maintains a laundry list of behaviors that are deemed unprofessional and for which the person can be disciplined. Board discipline can range from public reprimands to fines, all the way up to suspension or revocation of the practitioner’s license. These lists usually contain several points that address advertising and marketing. Therefore, it is important to follow these rules, not only because getting in trouble with the board can be very costly but also because there is such thing as bad publicity and many disciplinary proceedings are public. Here are some of the more common ways that advertising is regulated in a professional setting.

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False, deceptive or misleading

Almost universally, licensing boards will prohibit you from making any claims that are “false, deceptive or misleading.” It’s easy to see the value in that—licensed professionals enjoy a heightened public trust, so not only are falsehoods more likely to be believed by patients to their detriment, but they also damage public perception of the profession as a whole. However, neither you nor your patients decide what is false or deceptive. It is a third party, often a board investigator or disciplinary panel, who will make a judgement on the veracity of your claims.

Is the treatment “painless” or does it usually result in minimal easily managed discomfort? Under this sort of rule, things that are “mostly true” or “technically true” can be violations as much as statements that are outright false. Before touting how super-incredible-amazing you and your work are, take a step back and consider what kind of impression it will make on someone in the public who has no context for what to expect at a medical spa and may take things like “painless” literally or at face value. Misleading claims can also bring the attention of your state’s attorney general and the U.S. Food and Drug Administration (FDA) in addition to your licensing board.

Occasionally, the unprofessional conduct lists will more specifically include a prohibition on guaranteeing results. Again, the underlying concept is easy to understand. Many or even most patients may experience positive outcomes from a treatment; however, these results will be on a continuum, with some patients experiencing no benefit or even being worse off. Even when performed perfectly, the success rate of these treatments will never be 100%. So, it can be misleading to the public when the marketing promises this amazing outcome that they may not end up getting. Claiming that a course of treatment will make someone feel “X years younger” may be prohibited under this sort of rule, whereas “many patients report feeling more youthful” may not.

Another common area these professional conduct rules cover is prohibiting what are called “claims of professional superiority.” At its simplest, they prohibit saying, “I’m the best or better than,” without being able to prove it in a real, verifiable way. You may very well be the most skilled, best-trained injector in your city or state, but there is also no way you can prove that it is true and not a boast. A medical or nursing license is treated the same as every other medical license. After all, each person had to complete and meet the same requirements to be issued the license. From the board’s view, each license is of equal standing.

Saying you are a “specialist” or “expert” in a particular field poses the same problem. Who decided you are an expert? You might say, “But I’ve practiced for X years, performed thousands of the procedures and have taken all of these training courses.” A lawyer would respond with, “That’s great—you can say all those things since they are documented, but added up, they don’t make you an expert to the board.” The major caveat is that national specialty certifications (i.e. “board-certified”) recognized by the board are permitted, but informal ones typically aren’t.

This ties in with the use of professional titles as it relates to the licensed credentials. Every licensing statute sets out the protected titles that license holders are allowed to use—and, by extension, others can’t use. For example, medical doctors typically can use terms like “doctor,” “physician,” “MD” or “DO.” It would obviously be extremely misleading to advertise yourself as “Dr. Jones, MD,” if you didn’t hold one of these licenses or degrees. So, using “doctor” in advertising, even if it is a trade name like “Dr. Lips,” can pose problems.

Other licensed professionals who hold doctorates typically must make it clear what sort of doctor they are when in a health care context. Therefore, doctor of nursing practice (DNP) holders can usually still use “doctor,” provided the credential (DNP) is included as well. Job descriptions can also create issues as well. Is “advanced aesthetic nurse injector” misleadingly similar to the protected title of “advanced practice registered nurse?” Professionals know they are different, but would a prospective patient or the nursing board understand the difference, too?

To sum up: State licensing boards expect their licensees to be accurate and truthful in the content and claims of their advertising—e.g. it should contain nothing false, deceptive or misleading.

Patient privacy

The next big “medical” specific restriction on advertising has to do with patient privacy. When most people hear “patient privacy,” they think of the Health Insurance Portability and Accountability Act (HIPAA), and, for the most part, they’re right to do so. It is also important to know that many states have their own patient privacy laws, which may or may not differ from HIPAA requirements in ways that matter to you. But what does keeping private health information secure have to do with advertising? It matters because of photos, testimonials and social media interactions.

Using photos in marketing is a great idea and can be very effective. Before-and-after photos can give prospective clients an idea of the results that your services can provide, and the in-process photos can go a long way toward demystifying the process, potentially overcoming a prospective patient’s hesitancy or nervousness. But the subjects of the photos are also your patients. (Note: If you are using stock photos or paid models, you need to clearly disclose that, since it can be misleading or deceptive otherwise.) Did the patient consent for their photograph to be used in a marketing campaign that their friends and family could potentially see? (Closely tied to this is using patient reviews or testimonials; did the patient think they were giving you feedback to use internally, or do they understand that this will be a public comment?) Using patient photo consents is critical in this area, and it is important that they include all the ways the photos will be used. Photo consents are a whole topic by themselves, but, for our purposes, it is critical that they not only allow you to keep progress photos in the patient record, but also allow you to use them in a public and commercial fashion.

Closely related to this are social media interactions. Posting social media updates and comments is probably a big part of your overall marketing campaign; if it isn’t, you need to check out AmSpa’s webinars or get to a Medical Spa Boot Camp. Generating responses and rapport with the public—your potential patients—is critical to this strategy working. Some of your patients might even like or comment on your posts, and may even talk about how much they like you or how they plan to come in soon. However, you can’t acknowledge that they are a current or past patient or that they have had any medical procedures performed by you. You have no way of knowing if the patient has told everyone that they routinely get fillers and toxin treatments. Maybe they’ve told their friends but not their family. You just don’t know, and publicly talking about it will “out” them, whether they are okay with that or not.

The very fact that a person is a patient is also protected health information. This may seem “low stakes” in an aesthetic medical/dermatological context, but imagine this in other areas of medicine: Would a patient be okay with the world knowing that they are seeing a fertility specialist or someone who specializes in treating substance abuse? The patient is owed the same privacy protection regardless of what sort of medical services they are receiving. So, any sort of public interaction through social media needs to take these concerns into account.

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“Notices” are a relatively simple though technical area of advertising restriction. Often, medical boards will require that the name and license of the practitioner is included or displayed in a clear way for the public. Not all states have this, and the ones that do differ substantially. But, typically, it will require at least the name of the practitioner, their license and their board specialty to be included in each advertisement; sometimes a link to the practitioner’s website must be included, as well. These notice requirements may include posting information inside the practice, as well as in print and media advertising. The good part about this is that compliance is relatively easy: You just need to figure out what information your state requires you to disclose and then make sure to include it everywhere it is needed. Simple.

But it wasn’t me

You may have noticed that most of these rules or requirements have to do with holding a professional health care license. Likewise, the punishment and penalties for violating them also fall on the licensee. However, most health care professionals don’t do their own advertising. It is too time consuming and takes away from actually practicing—e.g., paying the bills. So, they hire it out to a firm or have a person on staff to take care of it.

However, if your practice creates a misleading advertisement, it is still your license that might get suspended or censured. The medical board does not care how awesome your marketing manager is—they view it as your responsibility to advertise ethically and within the rules. Here, again, the compliance solution is relatively straightforward, or at least easily said, but more complicated to implement: First, whoever is creating the marketing materials or posting on social media needs to be trained in what is permissible in medical advertising in your state. (Sorry—reading this article isn’t enough.) Second, ad material, promotions and marketing efforts need to be reviewed for compliance before they go out to the public. See? Simple-ish.

Wrapping it up

To reiterate, medical and health-related advertising is different and more regulated than other types of advertising. There are restrictions on the content, on what you can say, and on the form—how you say it—of advertising. Advertising is also not just a radio spot or mailed flyer. It includes all the ways you try to influence people to come to your business, such as Facebook or Instagram posts, pop-up events, and photos you use on your websites.

Violating medical advertising rules can not only be a general headache, but can also jeopardize the professional license that is at the center of the person’s ability to make a living and the practice’s ability to operate. It is critical to develop policies and procedures that will ensure that the practice’s advertising is not false, deceptive or misleading and complies with state and federal rules in addition to being effective. Keep this in mind when hiring advertising firms or marketing specialists; make sure they understand and are familiar with these issues.

Patrick O’Brien, JD, grew up in West Texas loving the outdoors and scouting, earning the rank of Eagle Scout. After attending Southwestern University, he worked in margin trading with a major investment brokerage. He returned to school and earned a law degree from Southern Methodist University. He brings his legal training and business acumen to AmSpa to help members keep up with legislative changes.

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