From Ethics to Advertising: Legal Boundaries in Promoting Medical Practices

From 1847 to 1982, the American Medical Association (AMA) forbade its members from advertising their practices. It had a Code of Medical Ethics that deemed “it derogatory to the dignity of the profession, to resort to public advertisements or private cards or handbills, inviting the attention of individuals affected by particular diseases.” As learned professionals, physicians were expected to work not to maximize profits but instead to serve the public good.

In 1982, the landscape changed when the Supreme Court in American Medical Assn v. FTC determined the AMA’s prohibition on advertising constituted anticompetitive activity and violated anti-trust laws. Physicians were now free to advertise under Federal Trade Commission supervision. Medical practices, however, have several legal considerations when they do advertise so as not to expose themselves to litigation over false advertisement. FTC regulations require that advertising must be truthful and not misleading as well as empirically supported. Claims for false advertisement fall under the Lanham Act (if a business competitor is the plaintiff), FTC regulations, or state consumer protection laws. False advertising in medicine is distinct from medical malpractice which is deviation from a standard of care that harmed a patient.

Moutos and Phelps (see link to paper in ‘Learn More – Primary Sources’ below) provide eight areas of liability to avoid when advertising a medical practice:

• Promoting false or misleading success claims (e.g. IVF success rates)
• Guaranteeing specific treatment outcomes (e.g. leaving a patient dissatisfied with breast augmentation)
• Targeting vulnerable patient populations (e.g. advertising cancer survival rates; unrepresentative patient testimonials)
• Misrepresenting services offered (e.g. renaming standard cosmetic surgery procedures to entice the reluctant patient)
• Endorsing products or services lacking empirical evidence (e.g. acne treatment without a scientific basis)
• Advertising unproven interventions (e.g. stem cell therapy that lacks FDA approval)
• Deceptive billing practices (e.g. claiming to work with all insurances while knowingly not participating in state sponsored Medicaid plan)
• Misrepresenting typical patient experiences and testimonials (e.g. generating fake positive patient reviews)

In addition, medical practices must also examine whether their patient testimonials comply with HIPAA. The authorization for the testimonial must detail what personal information the patient agrees to share. For example, if the patient reports a positive birthing experience, the testimonial cannot divulge the length of labor without authorization.

Advertising a medical practice can be highly beneficial so long as the advertising is truthful, not misleading, and factually accurate. All advertising material should be vetted to ensure that it conforms with federal, state, and local regulations.

References:

Attorney General James Secures $100,000 from Manhattan Doctor Who Manipulated Online Reviews.

Legal Considerations When Advertising a Medical Practice. (Moutos and Phelps, Obstet Gynecol, 2025)

Society for Assisted Reproductive Technology advertising guidelines: How likely are member clinics to maintain compliance after resolving their violations? (Sauerbrun-Cutler et al. F&S Reports, 2021)