History of Advertising by Health Professionals
Advertising by health professionals in Ontario has changed considerably over the years. In the past, advertising by health professionals was viewed as unseemly, and was even more heavily restricted than it is today. Not only was it considered inappropriate for health professionals to advertise on television, on the radio, or in news media, but strict restrictions were also placed on the content of health professionals' business cards and office signage.
This restrictive regime was successfully challenged in 1990 with the Supreme Court of Canada’s decision in Rocket v. Royal College of Dental Surgeons of Ontario, a case in which several dentists challenged the strict advertising regulation (the “Regulation”) of the Royal College of Dental Surgeons of Ontario (the “RCDSO”) as unconstitutional. The dentists argued that the Regulation violated their rights to freedom of expression under section 2 of the Charter of Human Rights and Freedoms (the “Charter”).
The Regulation contained a general prohibition on advertising by dentists, subject to a limited number of exceptions including:
Business cards (containing only contact information, professional designation and office hours )
Local Newspaper advertisements regarding opening a practice of change in practice location (with limitations on size, content and frequency)
Appointment cards and reminder notices for current patients;
Exterior signs at the dentist's office (limited in number and content)
Door plates or building directories (limited in height); and
Telephone directory listings (with numerous restrictions and requirements).
The Supreme Court found that commercial speech such as advertising is protected by section 2(b) of the Charter, which guarantees freedom of expression. However, the Supreme Court noted that commercial speech is generally afforded less protection (and therefore more permissibly subject to government regulation) than other forms of speech, such as political speech or artistic speech.
Having concluded that the Regulation breached the dentists' right to freedom of expression, the court went on to consider whether the Regulation could be "saved" under section 1 of the Charter, which will permit a law to infringe upon a Charter right where the following criteria are met:
the objective the government is seeking to achieve must be of sufficient importance to warrant infringing a Charter right
the measures designed to meet the legislative objective must be rationally connected to the objective;
the means used should impair as little as possible the right or freedom in question; and
there must be proportionality between the effect of the measures which are responsible for limiting the Charter right and the legislative objective of the limit on those rights.
The Supreme Court accepted that regulation professional advertising serves the following important objectives:
maintenance of a high standard of professionalism (as opposed to commercialism) in the profession; and
protection of the public from irresponsible and misleading advertising.
However, the Supreme Court found that the Regulation was not constitutional because it did not impair the right to free speech as little as possible. The Supreme Court also recognized that consumer choice is an important consideration, and that the regulation was impeding the consumer from receiving important information in selecting an appropriate dentist.
Although protecting consumers from misleading advertising and maintaining a high professional standard were important objectives, the Supreme Court concluded that a blanket prohibition on almost all advertising on the radio, on television, and in print captured speech that did not serve these objectives.
As a result, the Regulation was struck down in its entirety, and the RCDSO (along with other Colleges with similar regulations) were left to draft new regulations to more narrowly address their objectives of 1) maintaining a high professional standard and 2) protecting the public from misleading advertising.
Over time, this has resulted in the current regime of professional advertising today, much of which is covered in this update.
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
The Meaning of “Misleading Advertising”
