DTUS2010

DENTAL TRIBUNE | September 2010 Practice Matters 11A By Stuart Oberman, Esq. Dental advertising Is your practice using false or misleading advertising? Rules that govern the marketing of businesses (including dental prac- tices) are generally enacted by the Federal Trade Commission. There are various forms of marketing, such as advertising in magazines, news- papers, billboards, on the Internet, radio or even television. The Fed- eral Trade Commission is constantly monitoring advertisements, which includes dental advertising. Truth and clarity Dental advertisements must be truth- ful and non-deceptive. For an adver- tisement to be completely truthful, it must have evidence to back up each assertion of fact. An advertisement is non-decep- tive if it is not likely to mislead a rea- sonable consumer and does not omit any necessary information for the consumer to make an informed deci- sion regarding whether to obtain ser- vices at a specified dental practice. Regardless of the claim, all mate- rial information must be disclosed in a manner that a reasonable consum- er could understand. Disclosures, if typed, should be in a size large enough for a consumer to clearly read, and failure to comply with this requirement may result in the disclo- sure being deemed inadequate. Furthermore, an asterisk or other symbol should be used to call atten- tion to the disclosure, especially if the disclosure is placed at the bottom of the advertisement. In order to determine if an adver- tisement may be of a concern to Dentists have a right to promote their practices through various forms of advertising. However, ethi- cal guidelines regarding advertis- ing must be followed. Section 5 of the American Dental Association’s (ADA) Principles of Ethics and Code of Professional Conduct sets forth certain standards in part by stat- ing that no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any “material” respect. This standard has been imple- mented in order to protect the public from false and misleading advertis- ing that may induce a patient to seek dental services from a particu- lar office. Although some states may not have adopted Section 5 of the ADA’s Principles of Ethics and Code of Professional Conduct, Section 5 sets forth a good guideline that all den- tists should follow. The fundamental issue in dental advertising is whether the advertise- ment is false or misleading in any material aspect. The first step to ensuring compli- ance with ethical advertising is to understand advertising regulations, standards and the law. With a proper understanding, dentists will be able to market their practices and avoid legal problems associated with per- ceived false or misleading advertis- ing. the Federal Trade Commission, the advertisement must be considered in its entirety. Even if all of the statements in the advertisement are true, but the pictures are deceptive, then the advertisement may violate the Fed- eral Trade Commission’s advertis- ing standards (and the advertise- ment may also violate the guide- lines set forth by a particular state dental board or state law). In addi- tion, the advertisement should not imply something other than what the advertisement is intending to com- municate. Statistics Advertisements that incorporate sta- tistics must be accurate. If a dental advertisement is using statistics, then there must be accurate data to back up the advertising assertion. The Federal Trade Commission requires dental claims regarding consumer health to be supported by reliable scientific evidence and medical data. This evidence may include research, studies, tests and analysis, which are conducted by dental experts and professionals in an objective manner. Obviously, non-factual, silly claims or jokes contained in a dental adver- tisement, which no reasonable per- son could possibly regard as harm- ful, will not be considered false and misleading. Prices The Federal Trade Commission has g DT page 13A, ADVERTISING AD extensively regulated claims such as price reductions. Dentists should be aware of the relevant standards for this type of advertising. First, if a former price is speci- fied in an advertisement, the price must be the actual price of the goods or services offered for a reasonably substantial amount of time and on a regular basis. If a former price is not specified and a sale price is announced, the sale price must be such that a rea- sonable person with knowledge of the former price would regard the goods or services as a legitimate savings. Next, if a specific dental adver- tisement compares the prices of one dental practice to another (yes, this actually does occur), then the com- petitor’s prices that are listed in the advertisement must be the actual prices charged by the competing dental practice. Falsely stating the price of servic- es for a competing dental practice in an advertisement is considered mis- leading and deception advertising. Obviously, truthful advertising is important to both the American Dental Association and the Federal Trade Commission. All states have laws that prohibit false, deceptive or misleading dental advertising. If a dentist violates certain rules and regulations regarding the prohi- bition of false and deceptive advertis- ing, then the violation could result in