New Policy Governs Advertising by Physicians

The CPSO has recently approved a new Policy addressing physicians’ obligations with respect to Advertising (the “Policy”), and has also published a companion Advice to the Profession document (the “Companion Advice”) to “provide physicians with additional information and general advice in order to support their understanding and implementation of the expectations set out in” the Policy.

The Policy sets out expectations for physician advertising and includes both expectations that were already set out in the General Regulation under the Medicine Act, 1991 (the “Regulation”), as well as several new expectations and obligations. The Advertising Policy has created several significant changes to physicians’ obligations with respect to advertising, which will be discussed below.

 

This post contains the following sections:

  1. Definition of Advertising
  2. Advertisements prepared by third parties
  3. Association with Products or Services
  4. Before and After images
  5. Testimonials
  6. In good taste
  7. Directing or Targeting Prospective Patients
  8. Use of Title
  9. Conclusion

 

A. Definition of Advertising

The Policy defines advertising as:

any communication made in print, through electronic media, social media, or via the internet by or on behalf of a physician (i.e., by a third party) that has as its primary purpose the promotion of the physician, a service they provide, or a clinic, facility or group with which they are associated For the purposes of this policy, advertising also includes the communication of the availability of professional services.

 The Companion Advice clarifies that advertising includes the following communications, whether paid or unpaid:

a) print ads in newspapers, magazines, and brochures;

b) newsletters and mail outs;

c) business cards and stationery;

d) logos and signage;

e) TV or radio ads;

f) websites;

g) blogs and social media posts (e.g., Facebook, Twitter, Instagram);

h) posters and billboards;

i) posters or pamphlets displayed in a physician’s office or clinic waiting area; and

j) other information related to the physician’s practice, regardless of the form or the manner of distribution.

The Companion Advice clarifies that images or pamphlets used during an appointment with patients to explain treatments or services to them will not be considered advertising.

The Companion Advice also states that fundraising efforts on behalf of a foundation or an organization generally will not be considered advertising. However, the Companion Advice cautions that there may be circumstances where the nature of the content is such that it is subject to the Regulation and the Policy. Accordingly, Companion Advice recommends that physicians use their professional judgment to determine if association with a campaign is appropriate, based on the specific circumstances and content of the campaign.

As this advice is fairly vague, we recommend that if a physician decides to associate themself with a fundraising campaign, the physician should ensure that any communications containing the physician’s name or likeness comply with the advertising requirements contained in the Policy and the Regulation, and have the campaign reviewed by a lawyer.

 

B. Advertisements prepared by third parties

Under the new Policy, physicians must ensure that any advertisement prepared by a third party, complies with the expectations contained in the Regulation and the Policy. Under previous case law interpreting the Regulation, physicians were only required to take “reasonable steps” to ensure that advertisements prepared by third parties complied with the Regulation. Accordingly, the Policy seems to impose a higher standard in this regard.

 

C. Association with Products or Services

The Policy states that physicians must not permit their name or likeness (such as a photograph) to be associated with:

a) any commercial product or service other than their own medical services, or

b) facilities where medical services are not provided by the physician.

Physicians were already subject to these requirements under the Regulation. However, the Policy and the Companion Advice provide some helpful clarifications regarding the scope and content of these obligations.

As the Policy clarifies that pamphlets displayed in a waiting room are considered advertising, physicians will need to ensure that any pamphlets displayed do not contain reference to commercial products or services other than their medical services. As noted above, the Companion Advice clarifies that images or pamphlets used during an appointment with patients to explain treatments or services to them will not be considered advertising. Accordingly, pamphlets containing reference to specific products or services can arguably be used in discussions with patients, but not displayed.

The Policy also advises that physicians who are part of a multidisciplinary practice must ensure:

a) the advertisement does not provide or appear to provide any physician’s endorsement of services at the practice not provided by the physician; and

b) the advertisement does not state or imply that a physician provides all of the services offered at the practice, or that a physician provides any services that they do not in fact provide.

The Companion Advice also notes that permitting advertising from other businesses, for example business cards or flyers, in a physician’s office could be considered to be an endorsement of the advertised service or product. 

The Companion Advice states that the purpose of this prohibition is to ensure that physicians are not misusing their credentials to advertise and promote products or services to the public that may not be relevant or appropriate, and provides the following examples that are likely to be viewed as problematic:

  • A physician marketing and selling commercial health products and/or supplements they created;
  • A physician attaching their name to facilities where they do not practice or provide medical services;
  • A physician appearing in advertising to use their credentials to endorse a product or service marketed to the public;
  • A physician including in their advertising references to brand-name medications or devices to promote the benefits of these products.

The Companion Advice notes that physicians are permitted to discuss specific products and brands with prospective patients. Physicians are also permitted to include in advertisements that they provide a certain type of treatment and encourage interested parties to contact the physician or clinic for more information on the specific brands and products used.

 

D. Before and After images

The Policy clarifies that before and after photos or videos are permitted, but only under limited circumstances and subject to specific consent requirements.

The Policy defines before and after photos as follows:

images of a patient taken before, during, and/or after a medical service, and used to document the process or demonstrate the result.

 The Policy states that before and after images must:

a) be for the purpose of providing accurate and educational information;

b) portray a reasonably and typically expected outcome;

c) depict an actual patient who received the advertised medical service

d) be in respect of a medical service performed by the physician associated with the advertisement;

e) not be manipulated to misrepresent the results of the medical service;

f) have used consistent lighting, photographic techniques, and setting;

g) only depict a patient who has been de-identified, unless the patient has consented to being identified; and

h) are included alongside a statement that the outcome or results depicted are not guaranteed, and may vary between patients.

Regarding manipulation of photos, the Policy clarifies that cropping or resizing of images for display would not be considered manipulation, provided that consistent techniques are applied to any before and after images.

Before and after images also cannot be used in any form of advertising that has been paid for and will be disseminated to reach the public and prospective patients, who are otherwise not seeking out that information. Such images can be shown to a patient who seeks consultation from a physician with respect to the relevant service. Physicians are also permitted to use before and after photos and videos in formats where prospective patients may seek them out, for example on their websites or on their social media pages (provided there are no paid targeting or promotion of the posts).

The Companion Advice notes that a physician should be cautious in posting before and after images on social media sites, as the terms of use for social media sites can change and evolve, with potentially unforeseen consequences.

Regarding consent from patients to use before and after images, in addition to the general requirements for consent to the collection, use, and disclosure of personal health information contained in the Personal Health Information Protection Act, 2004, physicians must:

a) wait until after the medical service is provided to obtain consent;

b) show the final images to the patient before using them in any advertisements;

c) inform the patient that they can withdraw their consent at any point;

d) inform the patient about the risks of the use of before and after photos and videos

e) for example, that once posted on social media they may be unable to be completely withdrawn;

f) engage in an informed consent discussion, although written consent is not necessary;

g) consider how the power imbalance inherent in the physician-patient relationship could cause patients to feel pressured to consent and take reasonable steps to mitigate this risk;

h) show the patient the final copies of the photos that will be used in the advertisements; and

i) not offer incentives to the patients in exchange for consent.

 

E. Testimonials

Physicians are not permitted to use testimonials. A testimonial is defined in the Policy as:

a statement endorsing the quality of a service, product or professional. A before and after photo or video that complies with the requirements of this policy will not be considered a testimonial.

The Companion Advice clarifies a physician’s obligations with respect to testimonials posted on third party websites, such as RateMDs. Although patients are free to independently post their opinions on such sites, physicians should not direct or request that patients post reviews on such sites, should not post on these sites under a false name, and should not pay these sites to remove negative reviews. Physicians also should not link their reviews on these sites in their own advertising.

The Companion Advice also clarifies a physician’s obligations regarding posts by members of the public on the social media accounts of physicians or their practices. The Companion Advice states that although comments by third parties may not on their own be considered advertising, “a physician taking an active role in managing social media comments could change the way such comments are perceived.” For example, if a physician were to delete negative comments but not positive ones, this could be viewed as a breach of the Policy’s obligations with respect to testimonials.

 

F. In good taste

The Policy states that physician’s advertisements must be “in good taste.” The Companion Advice clarifies that advertisements that are “overly commercial” in nature, as opposed to education or informational, are more likely to be found to be in bad taste. The Companion Advice also expresses that size is relevant to whether or not an advertisement is in good taste. Information that is appropriate to put on a website may be in bad taste when it is placed on a billboard. The Companion Advice also expresses that advertisements that are posted for “shock value” are also likely to be found in bad taste.

In addition, the Companion Advice states that the use of an incentive to entice the public to receive medical services may not be in good taste, for example:

  • offering medical treatments as prizes in contests; or
  • offering prospective patients products or gift certificates not related to the medical service to encourage them to undertake a procedure.

 

G. Directing or Targeting Prospective Patients

Under the Policy, physicians must not:

  1. participate in an organized effort in which another person directs a prospective patient to a particular physician for medical services; or
  2. proactively target and contact, or attempt to contact, any person known to need medical services to solicit them to use their medical services.

The Policy clarifies that the above does not prohibit physicians from undertaking a referral or transferring a patient’s care, as long as these actions are done in compliance with the Regulation’s conflict of interest provisions.

The Policy also clarifies that physicians are not precluded from:

a) contacting patients who have been referred to them;

b) sending a reminder to a person who has made an appointment or

c) communicating with regular patients to inform them of:

i) health maintenance procedures due to be carried out;

ii) health issues;

iii) preventative medicine; and

iv) recent developments in medicine, or of a possible benefit from a change in therapy.

The Companion Advice notes that physicians offering services through group discount companies (such as Groupon) have previously been found by the Inquiries, Complaints, and Reports Committee to be participating in a system in which another person steered patients to a physician for professional services.

The Companion Advice also clarifies that physicians are not prohibited from participating in services such as Health Care Connect or outreach programs seeking to improve access to healthcare for vulnerable or marginalized populations, as long as they are complying with their other professional obligations while doing so.

 

H. Use of Title

The Policy states that in any communication that advertises, promotes or relates to the provision of medical services, physicians must only reference titles, designations, or medical specialties in accordance with the Regulation. Under the Regulation, physicians must identify themselves either by

a) the term, title, or designation that the physician may use with respect to the specialty or subspecialty of the profession in which the member has been certified by

i) the Royal College of Physicians and Surgeons of Canada (“RCPSC”);

ii) the College of Family Physicians of Canada (“CFPC”); or

iii) formally recognized in writing by the CPSO, or

b) the title “General Practitioner.”

Physicians can also have designatory letters (indicating academic degrees, professional certification from the RCPSC, CFPC or formal recognition from the CPSO).

Physicians can identify that they have a “focused practice,” but they must do so in a manner that makes it clear that they are not a certified specialist, and the must also include their title or designation above before identifying the focus of their practice. A physician can do this by including the words “practicing in.” For example, a family physician with a focused practice in pediatrics would identify themselves as follows:

  • Charles Gauthier, MD, CCFP, Family Medicine, practising in pediatrics

Physicians can also include their other credentials in their advertising, if they wish, but that information cannot come before the required specialty designation and practice descriptor, if any, described above. The Companion Advice provides the following example:

  • Stevens, MD, General Practitioner, practising in sleep medicine, Diplomate of the American Board of Sleep Medicine

 

I. Conclusion

For more information about the new Advertising Policy or the Companion Advice, or for advice as to whether your existing or proposed advertising, social media or other marketing initiatives are in compliance with the Policy, 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
The Meaning of “Misleading Advertising”
The Value of Learning from ONE’s Mistakes
Advertising in the Times of COVID-19

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