Cautions Upheld as Reasonable for Physicians who Breach Advertising Rules

Over the past year, a number of decisions of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (“College”) to caution physicians for violating the rules regarding advertising have been confirmed by the Health Professions Appeal and Review Board (“HPARB”) and the Divisional Court on appeal.

In this blog post, we will review a few of these decisions and discuss the guidance they do (and do not) provide to physicians regarding their responsibilities with respect to advertising. Such guidance is particularly important now that cautions in person arising out of complaints made, or investigations commenced, on or after January 1, 2015 will be posted on the College’s public register.

The Regulation of Advertising of Physicians

 Part II of Ontario Regulation 114/94 made under the Medicine Act (the “Advertising Regulation”) governs advertising by physicians in Ontario. The Advertising Regulation provides that physicians may communicate “factual, accurate and verifiable information that a reasonable person would consider material in the choice of a physician” provided that the information:

(a) is not false, misleading or deceptive by the inclusion or omission of any information;

(b) does not contain a testimonial or any comparative or superlative statements;

(c) does not contain any reference to a specific drug, appliance or equipment; and

(d) is readily comprehensible, dignified and in good taste.

Furthermore, the Advertising Regulation specifies that a physician may not:

(a) cause or permit his or her name to appear in any communication offering a product or service to the public; or

(b) otherwise cause or permit himself or herself to be associated with the advertising or promotion of any product or service, unless such communication, advertising or promotion is in respect of the physician’s medical services and complies with the requirements set out above.

There is no definition of testimonial, or comparative or superlative statements in the Advertising Regulation. Nor does the Advertising Regulation provide clarity regarding what it means to “cause or permit” one’s name to appear in (or be associated with) advertisements or regarding when a physician would be considered to be “associated” with the advertising or promotion or a product or service. Accordingly, these are issues that the ICRC, HPARB and the Divisional Court have been required to address in the context of complaints regarding inappropriate advertising.

HPARB Recommends that the College Clarify What Constitutes Acceptable Advertising

In a decision issued in December 2014, HPARB confirmed that a decision of the ICRC to caution a physician for breach of the Advertising Regulation was reasonable, but at the same time recommended that the College clarify the rules regarding advertising for the members of the medical profession and the public.

The ICRC’s decision involved a complaint that a physician had engaged in unprofessional behaviour by including on his website testimonials and statements that were false, misleading or deceptive. The physician claimed that the Advertising Regulation did not apply to his website, which had been specifically designed for non-Ontario resident viewers.  The ICRC did not accept this argument, stating that despite its intended audience, the website could be accessed by Ontario viewers as well and, therefore, the Advertising Regulation applied. The ICRC found that the physician’s website advertising was in breach of the Advertising Regulation and issued a caution to the physician.

The physician applied to HPARB for a review of the decision and made several arguments regarding the adequacy of the ICRC’s investigation and the reasonableness of the decision, including that the ICRC’s decision was unreasonable because it did not provide a definition of “testimonials” or include an analysis of the interpretation of “testimonials”. HPARB found this argument to be without merit, noting that the ICRC has knowledge regarding what constitutes a testimonial from over 20 years of experience interpreting the Advertising Regulation. Further, HPARB held that the ICRC does not have to provide details in its reasons regarding every single piece of information it relied on to come to its conclusion in order for HPARB to review the validity of the decision.

HPARB ultimately found that the ICRC’s investigation was adequate and that its decision to caution the physician was reasonable. Interestingly, HPARB recommended that the College create a policy to provide clarification to physicians and the public regarding what constitutes acceptable testimonial, superlative advertising in the internet age.

The Divisional Court Weighs In

In early 2015, two surgeons made an application to the Divisional Court for judicial review of HPARB’s finding that the ICRC’s decision to caution them regarding inappropriate internet advertising was reasonable. The Divisional Court dismissed the application for judicial review, holding that both the ICRC’s decision and the decision of the Board upholding it were reasonable.

The advertising issue in this case, according to phen375 testimonials was an advertisement for the physicians’ employer – a weight loss clinic – that was found on a website listing providers of bariatric surgery and which included testimonials, before and after photographs of patients, as well as names, biographies and photographs of the physicians.  Despite the fact that the physicians claimed that the advertisement was not known to them, had not been authorized by them and was not within their control, the ICRC found them to be in breach of the Advertising Regulation.

On the application for judicial review, the physicians argued (among other things) that the decision of HPARB to uphold the ICRC’s decision was unreasonable because there was no evidence that they “caused or permitted” themselves to be associated with the advertisement and therefore they could not have violated the Advertising Regulation. The ICRC had noted in its decision that the physicians were required “to show the College that they have taken reasonable steps to discontinue and/or prevent advertising that contravenes the Advertising Regulation.” The Divisional Court found that based on the evidence available to the ICRC, it was reasonable for them to find that the physicians “permitted” the improper advertising by failing to demonstrate that they had taken reasonable steps to remove it.

Another Caution for Breaching the Advertising Rules Confirmed by HPARB

Following its advice that the College draft a policy to clarify the rules, HPARB had another opportunity to review a decision of the ICRC to caution a physician in person for improper advertising for the use of testimonials, comparatives and superlatives in the online advertising of his weight-loss and effective diet tablets program for the clinics.The ICRC found that the success stories, before and after photographs of individuals, and the names or initials of some of these individuals attesting to the weight they lost after following the physician’s program constituted testimonials and were therefore in breach of the Advertising Regulation.  Testimonial was described in the ICRC’s reasons as being a “written or oral statement attesting to the quality of the product or service.” HPARB noted that one of the meanings of the word “attest” is “to affirm to be true or genuine” and found, on the basis of this wording, that the ICRC’s decision was reasonable given the “attestations” on the physician’s website.

Furthermore, the ICRC found that the advertising contained both comparative and superlative statements, and this decision was also upheld as reasonable by HPARB. In regards to comparative statements, HPARB found that by using the statement, “We have been around longer than most other diet programs and outlasted fad diets and magic solutions”, the physician was comparing his program to that of others, even though they were not specifically named. HPARB also agreed with the ICRC that the following statement was a superlative: “We have helped hundreds of thousands of people lose millions of pounds of excess weight and keep it off for life.” In making this finding, HPARB noted that if the ICRC considered the word superlative to mean “of the highest quality” then its conclusion that the statement was superlative was reasonable.

Conclusion

Although the College has not yet followed HPARB’s advice to create a policy clarifying the rules regarding advertising, there is some guidance that can be taken from the decisions we reviewed in this blog post. In particular, physicians should take the following into consideration with respect to their obligations under the Advertising Regulation:

• statements that compare the services of a physician to the services of others may be found to be contrary to the Advertising Regulation, even where the name of the other provider(s) is not mentioned;

• a testimonial is a written or oral statement attesting to the quality of a product or service, and examples include success stories and before and after photographs; and

• even where a physician does not have control, or knowledge, of an advertisement regarding his or her practice (or that contains his or her name), the physician is required to take reasonable steps to discontinue and/or prevent any advertising that contravenes the Advertising Regulation.

It is important to note that the rules regarding advertising differ between regulated health professions. It is extremely important that all health professionals, including physicians, ensure that they are familiar with the rules governing advertising within their profession. 

If you require advice with respect to whether your (or your employer’s) advertising is in compliance with your college’s advertising rules or assistance in responding to a complaint regarding your advertising practices, please contact us. We have extensive knowledge and experience dealing with these types of issues and would be pleased to assist you.