Advertising Guidelines Advice

This document has been produced primarily from the Chiropractic Board of Australia (CBA) guidelines and the Australian Competition & Consumer Commission (ACCC)   It is not intended to replace legal advice and Chiropractic Australia recommends that if you are unsure about your legal obligations you should seek your own independent legal advice.  There is detailed information to be found on both the CBA and ACCC websites.

It is beholding on individual practitioners to be familiar with all the codes and guidelines that are relevant to practising in an honest, ethical and patient centred manner.  Breaches of the codes and guidelines may potentially give rise to disciplinary action taken by the CBA

Overview

The CBA’s sole responsibility is to protect the public, not practitioners.

The Board clearly states that the guidelines are not designed to explain how to advertise and state that it is not possible to provide an exhaustive list of do’s and don’ts.  They are designed to explain and provide general guidance on the obligations of advertisers under the National Law.

The guidelines are not prescriptive and in general rely on a common sense approach.

Importantly, the perspective taken in breaches of the advertising guidelines is that of the educated layman, not the chiropractor. For instance, a chiropractor may believe that ongoing care is beneficial to health but because this view is not yet supported by validated research, this cannot be claimed in an advertisement. As advocates of chiropractic care it is natural for us to wish to use advertisements to educate the public, but as far as advertising legislation is concerned, advertising is very different to public education. When chiropractors confuse the two they can inadvertently breach the guidelines.

The National Law controls advertising of all regulated health services, such that a person or business must not advertise a regulated health service in a way that:

1. Is false, misleading or deceptive or is likely to be misleading or deceptive

The words ‘false’ and ‘misleading’ have a specific meaning at law. This is accepted to include lying, leading one to wrong conclusions, creating a false impression, leaving out or hiding important information and/or making false or inaccurate claims

The ACCC explains, ‘Patients can be physically, psychologically or financially affected by misleading conduct, and these effects can be long lasting. It is essential that patients be given honest, accurate and complete information in a form they can understand.’

Examples of false or misleading advertising include:

  • Mislead directly or by implication via use of emphasis, comparison, contrast or omission
  • Provide partial information which could be misleading
  • Use phases like ‘as low as’ or ‘lowest prices’ or similar, when advertising service fees or products in a misleading or deceptive way
  • Imply that the regulated health service can be a substitute for public health vaccination or immunization
  • Use words, letters or titles that may mislead or deceive a health consumer into thinking that the provider is more qualified or more competent than a holder of the same registration category (e.g. ‘specialising in XX’ when there is no specialist registration category for that profession). Chiropractors do not currently have the rights to claim specialties or endorsements that are specific areas of expertise approved by the health department. Use of words such as ‘specialises in’ may be misleading or deceptive as patients can interpret the advertisements as implying that the practitioner is more skilled or has greater experience than is the case . However chiropractors are permitted to use phrases such as “has a clinical interest in…”, “has substantial experience in…” or “working primarily in…”.
  • Advertise the health benefits of a service when there is no proof that such benefits can be attained. ”False and misleading” statements not only include statements that are factually wrong but may also include claims that are “unable to be proven”. As an example, while there is some evidence to suggest that chiropractic care may be beneficial in the treatment of asthma, at present the weight of scientific evidence does not support this statement. So chiropractors who advertise that they can help asthmatics would probably be regarded as making a ‘false’ claim and, in doing it could be construed that that they are ‘misleading’ the public. Even if the chiropractor only meant to claim that chiropractic care could help improve the thoracic biomechanics of an asthma sufferer, failure to explicitly state this may be considered a breach of the guidelines.
  • Compare different regulated health professions or practitioners, in the same profession or across professions, in a way that may mislead or deceive.

2.  Offers a gift, discount or other inducement to attract a person to use the service unless the advertisement also states the terms and conditions of the offer

If the word “Free” is used it is generally considered to mean absolutely free and it is considered deceptive when costs are recouped through a price rise elsewhere. An example is an advertisement which offers ‘make one consultation appointment, get one free’, but raises the price of the first consultation to largely cover the cost of the second (free) appointment. This type of advertising could also be misleading or deceptive.

The terms and conditions should be in plain English, readily understandable, accurate and not in themselves misleading about the conditions and limitations of the offered service.

3. Uses testimonials about the service or business

A person must not advertise a regulated health service, or a business in a way that uses testimonials or purported testimonials about the service or business.  This is a simple mandate.

All forms of testimonials, including those advertised via Facebook, print, radio, TV, or websites are prohibited under the CBA’s guidelines. This includes self-testimonials such as life stories about the chiropractor relating to some health benefit they may have received by undergoing chiropractic treatment.

Testimonials also include patients posting comments about a practitioner on the practitioner’s business website.

Health practitioners should therefore not encourage patients to leave testimonials on websites under the practitioner’s control, and should remove any testimonials that are posted there, once they become aware of the situation.

Practitioners are responsible for regularly reviewing their social media content to make sure it complies with their obligations under the National Law.

Patients can share views through their personal social media or on information sharing websites or other online mechanisms.  For example, consumer and patient information sharing websites that invite public feedback/reviews about experience of a regulated health practitioner, business and/or service are generally intended to help consumers make more informed decisions and are not considered advertising of a regulated health service.  To clarify, practitioners are not responsible for removing (or trying to have removed) unsolicited testimonials published on a website or in social media over which they do not have control.

4. Creates an unreasonable expectation of beneficial treatment

A person must not advertise a regulated health service, or business, in a way that creates an unreasonable expectation of beneficial treatment. In most cases it is impossible to have a clinical certainty of outcome, therefore practitioners should not predict or promise outcomes of treatment.

This can be considered to be taking advantage of the vulnerability of health consumers in their search for a cure or remedy. The claims of beneficial treatment can range from unsubstantiated scientific claims, indicating that the treatment is infallible, unfailing or magical through to miracle cures.

Statements that a practitioner has an exclusive or unique skill or remedy, or that a product is ‘exclusive’ or contains a ‘secret ingredient’ that will benefit the patient would also contravene the National Law.

Advertising may contravene the National Law when it creates an unreasonable expectation (such as by exaggerating or by omitting or providing incomplete or biased information) of recovery time after providing a regulated health service or fails to disclose the health risks associated with a treatment.

Also advertising that contains inappropriate or unnecessary information or material that is likely to make a person believe their health or wellbeing may suffer from not taking or undertaking the health service may also contravene the National Law.

5. Directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.

A person must not advertise a regulated health service, or business, in a way that directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.   This is not in the public interest.

Advertising may contravene the National Law when it encourages a person to improve their physical appearance together with the use of phrases such as ‘don’t delay’, ‘achieve the look you want’ and ‘looking better and feeling more confident’. In the context of chiropractic this may include radiographic evidence of changes in scoliotic curves or posture.

Other examples under this regulation would providing a patient with an unsolicited appointment time.

Using prizes, bonuses, bulk purchases, bulk discounts or other endorsements to encourage the unnecessary consumption of health services that are unrelated to clinical need or therapeutic benefit.

Similarly  promotional techniques that are likely to encourage consumers to use health services regardless of clinical need or therapeutic benefit, such as offers or discounts, online/internet deals, vouchers, and/or coupons may also breach the National Law.

Advertising time-limited offers, which influence a consumer to make decisions under the pressure of time and money rather than about their health care needs; without an option to exit the arrangement could also encourage unnecessary use of health services.

Whether or not a treatment is judged to be ‘unnecessary’ or ‘indiscriminate’ is based on the appropriate clinical justification for the treatment. For example, at present, quality research does not support the notion that ongoing wellness care programs yield long term health benefits and as such chiropractors should not make such claims in their advertising.

What happens in a breach?

A breach of advertising requirements is a criminal offence. A court may impose a penalty up to $5,000 for an individual and $10,000 for a body corporate.

Useful information in advertising

The ACCC has provided tips on how to avoid misleading advertising:

  • Sell your professional services on their merits.
  • Be honest about what you say and do commercially.
  • Ask yourself who the audience is and what the advertisement is likely to say or mean to them.
  • It is the viewpoint of a layperson with little or no knowledge of the professional service you are selling that should be considered.

Providing factual information in advertising helps consumers make informed decisions. A wide range of facts can be provided in effective advertising, such as:

  • Office details including
    • Contact details
    • Office hours
    • Availability of after-hours services
    • Accessibility (such as wheelchair access)
    • Languages
    • Emergency contact details
  • Fees
    • Fees charged with price information
    • Provider status with Medicare, TAC, Worksafe, WorkCover, DVA, etc
    • Other insurance plan arrangements and instalment fee plans
  • Qualifications and experience
    • Names of schools and training programs graduated from and the qualifications received
    • Chiropractors cannot advertise specialist qualifications and currently cannot hold endorsed specialist titles
    • What positions, currently or in the past, the practitioners have held
    • Whether the practitioner is accredited by a public board or agency or other body
    • Whether the practice is accredited and by whom
    • Clinical interests
  • Photos or drawings of the practitioner or their office
  • Public health information that helps consumers to improve their health (this information should be based on reputable evidence wherever possible)

Advertising qualifications or memberships

Advertising qualifications or memberships may be a useful way to provide the public with information about the experience and expertise of health practitioners.

However, it may be misleading or deceptive if the advertisement implies that the practitioner has more skill or experience than is the case.

Including professional qualifications in an advertisement that also promotes the use or supply of therapeutic goods may be interpreted as a professional endorsement. “Professional endorsement of therapeutic goods by individual practitioners is prohibited under the Therapeutic Goods advertising code.

Use of titles in advertising

The National Law regulates the use of certain titles. Misuse of a protected title is an offence under the National Law.

If practitioners choose to adopt the title ‘Dr’ they must clearly state that they are not a medical practitioner and qualify the title i.e. “Dr Jane Doe, Chiropractor”

It may also be misleading to use symbols, words or descriptions associated with titles.

Use of scientific information in advertising

To not mislead or create false impressions, caution should be taken when using scientific information in advertising.

When a practitioner chooses to include scientific information in advertising, the information should:

  • Be presented in a manner that is accurate, balanced and not misleading
  • Use terminology that is understood readily by the target audience
  • Identify clearly the relevant researchers, sponsors and the academic publication in which the results appear
  • Be from a reputable (e.g. peer reviewed) and verifiable source.

Definitions of advertising

Advertising (includes but is not limited to) all forms of printed and electronic media that promotes a regulated health service and includes any public communication using:

  • Television
  • Radio
  • Motion pictures
  • Newspapers
  • Billboards
  • Books
  • Public and professional lists
  • Pictorial representations
  • Designs
  • Mobile communications or other displays
  • Internet
  • Social media
  • All electronic media that promote a regulated health service
  • Business cards, announcement cards
  • Office signs
  • Letterhead
  • Public and professional directory listings
  • Professional notices (e.g. patient recall notices)
  • Situations in which practitioners make themselves available or provide information for media reports, magazine articles or advertorials, including when practitioners make comment or provide information about particular products or services, or particular practitioners for the purposes of promoting or advertising a regulated health service.

Excludes:

  • Materials issued to patients during consultations
    • When this material is designed to provide the person with clinical or technical information when the person is given adequate opportunity to discuss and ask questions about the material. The information should not be interpreted as promoting that practitioner’s services
  • Material issued by a person or organisation for the purpose of public health information
    • Which confer no promotional benefits on the practitioners involved
  • Comments made by a patient/consumer about a practice or a practitioner where:
    • The comments are made on a social media site or account or patient/consumer information sharing site or account which is not used to advertise a regulated health service
    • That site or account is not owned, operated or controlled by the practice or practitioner referred to in the comments.

Chiropractic Australia recommends that practitioners read the CBA guidelines and seek professional legal advice to clarify any areas of concern about their obligations under the National Law.