California

There’s good reason that California is known as the King of Regulation in many legal circles. Its code sections on healthcare marketing alone are almost 3,000 words long. Have your legal dictionary handy when you discuss potential medical marketing issues in California with your legal counsel.

Before you and your attorney dive too deep into the laws, check out the best practices below, giving you a quick reference on how to start developing legal and ethical healthcare advertising in the state.

Sample Best Practices

California Business and Professions Code section 651 lays out many rules for healthcare advertising by physicians in the state. Not adhering to 651’s requirements could constitute a misdemeanor crime and could subject a California physician to disciplinary action, including suspension or revocation of their medical license. Physicians also need to follow all relevant advertising regulations and rules that apply to their practice. When engaging in healthcare advertising on medical websites in California, here are 9 best practices that might help physicians stay on the right side of the law. As always, consult with your legal counsel to make sure you are complying with all relevant marketing laws.

• Never publish false, fraudulent, misleading, or deceptive statements, claims, or images on your website, an online medical directory listing, or any other Web resource.
• Always disclose all material facts related to a procedure or other medical offering.
• When publishing images of patients, never alter before and after photos, other than to crop them for size or to mask identifying traits such as facial features, tattoos, or prominent scars. When taking before and after photography, be careful to use similar angles and lighting so that “after” results are accurately depicted and not enhanced in any way. All before and after pictures must be accompanied by easily readable text explaining exactly what procedures were performed and disclaiming that “results may not occur for all patients” (exact wording required). Each before and after photo must be clearly labeled as such.
• When using an image of a model (anyone other than a patient who has undergone the procedure being advertised), be sure to place a “model overlay” on the image that states the fact that a model is being depicted.
• When publishing fees, other than a standard consultation fee or a range of fees for specific types of services, be sure to disclose all variables and other material factors. All price advertisements must be exact, without using phrases such as “as low as” or “and up.” Price comparisons must be based on verifiable data retained by the advertiser. Advertised prices for products must include charges for related professional services unless the advertisement specifically and clearly indicates that these charges are extra.
• Never make claims of professional superiority unless you have objective evidence to support the claim.
• Never make a scientific claim that cannot be substantiated by reliable, peer reviewed, published scientific studies.
• Include all material facts in endorsements and testimonials to avoid misleading or deceiving site visitors.
• If you have been certified by a board or association that is not an American Board of Medical Specialties (ABMS) member board, you must be very careful in how you advertise this certification. Read section 651(h)(5), along with 16 California Code of Regulations § 1363.5, which when combined establish the requirements for advertising a certification by a non-ABMS board or association.

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