Advertising in the Times of COVID-19
Members of one of the regulated health professions in Ontario are subject to rules and restrictions regarding how they use advertising and social media.
The regulatory colleges enforce these restrictions with a view, among other things, to protecting the public from false or misleading information and to prevent conduct that reflects poorly on their respective professions. The need for caution with regard to what information is provided by health professionals to the public is heightened in a public health emergency where the public is looking to the medical community for guidance regarding COVID-19.
The scientific uncertainty surrounding COVID-19 and the constantly developing nature of how it is being managed in Ontario and around the world makes information related to COVID-19 especially sensitive. Several regulatory colleges have reminded their members to avoid making any statements or claims regarding COVID-19 that are not verifiable, and in particular, any claims which contradict public health and government guidelines. For example, the CPSO made the following statement in its COVID-19 Frequently Asked Questions Page for Physicians:
Physicians are reminded to be aware of how their actions on social media or through other forms of communication may be viewed, especially during a pandemic. Your comments or actions can lead to harm if you are providing a medical opinion that does not align with information being provided by public health officials and all levels of government. It is essential that the public receive a consistent and clear message. [emphasis added]
Health professionals should be alert to the fact that they are viewed as reliable sources of information by the public. In consideration of this responsibility, health professionals should avoid statements that promote fear, contradict public health recommendations, or are otherwise not in line with professional standards and guidelines. This of course includes unsubstantiated claims about potential treatments or preventative measures for COVID-19.
The College of Chiropractors of Ontario (“CCO”) addressed this exact problem after receiving a high volume of complaints in March and April of this year pertaining to inappropriate COVID-19-related advertisements, websites and social media posts. Some posts brought to the CCO’s attention included claims that chiropractic treatment could boost the immune system and resistance to COVID-19.
Between March 20 to April 20, 2020, the CCO received 158 complaints pertaining to such content, a shocking number considering that the CCO only received 98 complaints total in all of 2019. Interestingly, two-thirds of these complaints were made by CCO members, and no complaints were made by chiropractic patients. This steep rise in the number of complaints seems to indicate that along with heightened interest in COVID-19, there is also heightened scrutiny of public statements made by regulated health professionals by the public, regulators, and other health care professionals (HCPs).
At the time of writing, the CCO’s Inquiries, Complaints, and Reports Committee (ICRC) had reportedly addressed 64 of the complaints, resulting in a mix of remedial measures. These dispositions included three oral cautions, which are recorded indefinitely on the public register and can have a serious impact on the member’s reputation. In making its determinations, the ICRC looked at a number of factors, including how misleading the content was, the risk to the public, and the response of the member.
Additionally, the CCO served 74 cease and desist letters on their members and issued guidance to the profession that, “members should not make any unsubstantiated claims concerning chiropractic care and COVID-19”. The CCO further reminded its members not to rely on third party content creators to ensure compliance with regulations and CCO guidance, as they may not be familiar with these restrictions and the member remains responsible for the content and compliance with professional standards and guidelines.
This is one example of how acts of professional misconduct or legal liability may arise in the context of a public health emergency, and why, now more than ever, HCPs should ensure that they are up-to-date and familiar with professional standards both old and new. This includes public health directives, emergency orders, and other policies that affect how HCPs deliver health services during the current public health emergency.
If you or your organization have questions regarding how to implement public health directives and other COVID-19 related policy changes, please contact us.
Rosen Sunshine is pleased to present this special update with a focus on advertising.
The College of Physicians and Surgeons of Ontario (CPSO) just enacted a new policy on advertising by physicians. As other health Colleges often look to the CPSO for guidance, this new policy will likely be influential throughout the health professions. In this update, we will provide an outline of the CPSO’s new policy, and our thoughts on what it could mean for other health professionals in Ontario and Canada. We have also included a brief history of the regulation of advertising by health professionals, summarized a few recent cases that provide valuable lessons with respect to advertising, and provided our thoughts and tips on advertising during COVID-19.
Other Updates in this Series Include:
Top 10 Things to Know about the CPSO’s new Advertising Policy
History of Advertising by Health Professionals
