Marketing and advertising

The American Dental Association recognizes the right of its members to promote their practices and services within the ethical standards set forth in the ADA Principles of Ethics and Code of Professional Conduct ("ADA Code"). Section 5.F. Advertising of the ADA Code states:

“Although any dentist may advertise, no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any material respect.”

This standard is accepted in ethics and the law to distinguish between advertising which is permitted and that which is not. The rationale for the standard is the protection of the public. Truthful, non-deceptive advertising of a dentist's qualifications, services or facilities can help patients make informed choices about practitioners and services. On the other hand, advertising that is false or misleading harms patients by making it more difficult and costly for them to make informed choices.

A fundamental step to ethical advertising is knowing the applicable advertising rules and standards required by law. Familiarity with advertising rules can help dentists market their practices in a truthful and ethical way and to identify issues before they develop into ethical, regulatory or other problems. Knowing the basics can also help dentists recognize when to seek legal advice. In addition, it helps dentists as consumers of products and services to sort through countless claims and representations to make informed purchase decisions.

The American Dental Association has prepared this guide as a tool to assist dentists and dental societies as they examine issues related to advertising. We begin with an overview of federal advertising rules with useful resource links, followed by a review of state advertising regulations and a section on codes of ethics in dentistry. Comments, questions and updates may be sent to legaldivision@ada.org.

The Federal Trade Commission (FTC) represents itself as the nation's primary protector of truth in advertising. FTC rules govern marketing wherever it appears in the states and territories and in whatever medium it runs — magazines, newspapers, television, radio, billboards, websites and social media. With regional offices around the country, regular contacts with local authorities, ongoing monitoring of promotions, and a massive database of tips and complaints, the FTC could be looking at a dentist’s ads at any time. Along with the rules of the state, locality and profession, the FTC's standards (and a lawyer qualified to explain them) should be consulted regularly by every advertiser.

The FTC explains the basic federal rules in its Advertising FAQs: A Guide for Small Business. Here is an excerpt:

What truth-in-advertising rules apply to advertisers?

Under the Federal Trade Commission Act:

• Advertising must be truthful and non-deceptive
• Advertisers must have evidence to back up their claims
• Advertisements cannot be unfair

What makes an advertisement deceptive?

According to the FTC's Deception Policy Statement, an ad is deceptive if it contains a statement
— or omits information — that:

• Is likely to mislead consumers acting reasonably under the circumstances
• Is "material" — that is, important to a consumer's decision to buy or use the product

What makes an advertisement unfair?

According to the FTC's Unfairness Policy Statement, an ad or business practice is unfair if:

• It causes or is likely to cause substantial consumer injury which a consumer could not reasonably avoid
• It is not outweighed by the benefit to consumers

Diagnosing ads for potential FTC problems should always be done with the advice of advertising lawyers, but advertisers can help by keeping some of the basic issues in mind.

It's the whole ad that matters

Every sentence can be true, but if the words and pictures add up to a deceptive claim, the FTC can prohibit the ad.

What the ad says and what it implies both matter

If an ad claims that a mouthwash prevents colds, that is an express claim that must pass FTC muster.

If an ad claims that the mouthwash kills germs that cause colds, the express claim is "kills germs," but the FTC might also see an implied claim that the mouthwash prevents colds. Both claims must pass muster.

What the ad doesn't say can count

An ad should disclose any material information that is necessary to prevent the advertisement from being misleading. For example, an ad inviting people to come in for a product or service that will not be available for months should say when the product or service will be available.

Materiality matters

If a claim would be important to consumers — if it is more likely to make them buy or use the service — then it is important to the FTC.

Not surprisingly, claims made in ads often pass the materiality test. Claims about consumers' health are considered very important.

Puffery does not count

Subjective claims, silly claims, obvious hype, and other claims that no reasonable person would believe typically don't count against an ad.

Examples of puffery might include: "Try it, you'll like it.” “Your smile will be irresistible.” “We're the friendly dentists."

But "70% preferred our whitener" or "30% percent whiter teeth than before" are factual claims that must be true. Also, the context of an ad can turn puffery into a factual claim. For example, "try it you'll like it; 70% do," makes an objective claim about how many people like it.

The FTC has issued numerous regulations and guidelines concerning some common types of claims that advertisers like to use — including claims about prices, claims offering free products or services, and claims concerning warranties or guarantees. Advertisements featuring such claims should adhere to the relevant FTC standards.

Pricing claims

Price reduction claims. The "former" price specified in the ad must be the actual price at which the product or service was openly and actively offered on a regular basis for a reasonably substantial period of time.

When advertising a price reduction without listing the former price or the amount of the reduction — e.g., an ad that merely states, "Sale" — the price reduction should be enough that a reasonable consumer would regard it as a genuine savings if he or she knew the amount of the reduction.

Comparisons to competitors' prices. A price listed as that offered by a competitor must be based on actual prices charged by competitors.

Savings based on purchase of other merchandise. When an ad makes claims like "Buy One – Get One Free," "2-For-1 Sale," or "Buy one, get 50% off the second," whatever a consumer must purchase to obtain the savings should be available at its regular price — the price at which the advertiser has openly and actively sold the product or service for a reasonable time. The ad should disclose material terms and conditions of the offer.

For more details, see the FTC Guides Against Deceptive Pricing, 16 C.F.R. § 233.

Claims about "free" offers

Advertisers offering free merchandise or services must not attempt to assess a charge indirectly by marking up the price or reducing the quality of any item that must be purchased in order to obtain the free merchandise or service.

If a patient must purchase something to obtain the free offer, the price of the purchased item should be the regular price.

Negotiated sales. If a product or service does not have a regular price — for example, if the price, quality or quantity is usually negotiated — that product should not be used for the purchase that qualifies a patient to obtain "free" services. A negotiated price can be the basis for offering a package of services — for example, "With service, you will receive three additional visits."

Frequency of "free" offers. Like a sale price, a free offer should not be made so often that it appears not to offer genuine savings.

For more details on "free" offers, see the FTC's Guide Concerning Use of the Word ''Free'' and Similar Representations, 16 C.F.R. § 251.

Claims regarding warranties or guarantees

Advertisements of warranties or guarantees for consumer products must disclose that, prior to sale, at the place where the product is sold, prospective purchasers can view the written warranty or guarantee for complete details of the warranty coverage.

A dentist may advertise that a product is covered by warranty or guaranteed only if the seller promptly and fully performs his or her obligations under the warranty or guarantee.

"Satisfaction guaranteed" and similar representations. Ads containing "satisfaction guaranteed" or similar representations must disclose any material limitations or conditions that apply to the guarantee.

A dentist advertising a guarantee must refund the full purchase price of the product at a consumer's request if the consumer satisfies the conditions applicable to the guarantee.

"Lifetime" and similar representations. When using terms such as "lifetime," "life," or similar representations to describe the duration of a warranty or guarantee, a dentist must specify the "life" to which the representation refers.

To view a complete list of FTC standards for warranty and guarantee advertising, see the FTC's Guides For The Advertising Of Warranties And Guarantees, 16 C.F.R. § 239.

Endorsements and testimonials, when made on behalf of an advertiser via traditional media (such as radio, television and print) as well as new media (such as blogs, review sites, and social networks) can constitute commercial speech and be regulated under the FTC Act if they are deceptive.

In 2009, the FTC issued revised Endorsement Guides to address the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. These guidelines cover any advertising message made on behalf of a sponsoring advertiser when consumers are likely to believe it represents the opinions or experiences of someone other than the advertiser. An endorsement or testimonial must represent the endorser's opinion and experience. In addition, unless it is obvious to the audience, the endorser must clearly and conspicuously disclose any material connection it has with the advertiser. The rules about disclosures are addressed in more depth below, but the key objective here is still truthfulness.

The FTC rules seek to ensure that an advertisement's audience understands the reviewer's relationship to the advertiser, and can consequently give proper weight to the opinions being offered.

In addition to requiring the disclosure of material connections, the FTC guidelines differentiate between expert, organizational, and consumer endorsements and lay out specific criteria for evaluating each.

Expert endorsements. Experts must possess the qualifications and expertise represented, and their endorsements must be based on the exercise of that expertise in evaluating the same product or service that is available to the ordinary consumer. If the expert gives the impression that, for example, the dentist's services are superior to those of other dentists, the expert must have in fact found such superiority during the course of a sufficiently extensive examination.

An advertiser may only represent that an endorser uses a product if the endorser was a "bona fide user of it at the time the endorsement was given." Similarly, advertisers may only continue to use that expert or celebrity endorsement "so long as it has good reason to believe that the endorser continues to subscribe to the views presented."

The expert may, however, consider factors not within his or her expertise, such as matters of taste or price.

Organizational endorsements. Endorsements by organizations "must be reached by a process sufficient to ensure that the endorsement fairly reflects the collective judgment of the organization."

When the organization is represented as being "expert," then the product or service being endorsed must be evaluated by an expert or experts recognized by the organization or previously adopted standards suitable for assessing the merits of the product or service for which an endorsement is sought.

Consumer endorsements. Advertisements depicting or implying endorsements by "actual consumers" should utilize actual consumers or else clearly and conspicuously disclose the relationship.

Because an advertisement containing endorsements by one or more consumers may be interpreted as a representation about either the effectiveness or the general experience of the product or service, the FTC requires the advertiser to support the claims. (These substantiation requirements are addressed in more depth in the next section.)

According to the FTC guidelines, "[a]dvertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers."

Today patients choosing a new dentist often look to websites that aggregate customer reviews. Planting fake positive reviews (or engaging someone else to do so) on a review website such as Yelp or Angie (a practice sometimes referred to as "astro-turfing" because it disingenuously emulates a spontaneous grass-roots process), may constitute a violation.

For more information, see the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. § 255.

An advertiser must have a reasonable basis for making objective claims before an ad runs. An example of a reasonable basis would be having scientific evidence showing that the claim is true.

An advertiser must have at least as much evidence as the ad describes. For example:

• If an advertiser claims that "60% of dentists surveyed recommend this treatment," the advertiser must possess a valid survey showing that 60% of the surveyed dentists recommended it.
• If the ad claims "laboratory tests prove this disinfectant lasts longer," the advertiser must have evidence that competent tests found the difference.

If the ad does not claim that a specific level of substantiation exists, the FTC considers a variety of factors, including the materiality of the claim, the consequences if it were false, and the amount of evidence experts would expect for the claim.

Because the FTC regards health claims to be material to consumers, it requires that such claims be supported by "competent and reliable" scientific evidence.

"Competent and reliable scientific evidence" has been defined in FTC cases as "tests, analyses, research, studies, or other evidence based on the expertise of professionals in the relevant area, that have been conducted and evaluated in an objective manner by persons qualified to do so, using procedures generally accepted in the profession to yield accurate and reliable results."

Claims about other benefits require evidence reasonably showing the claim to be true. For example:

• "The lowest prices in town" would require a reliable survey of competitors' prices.
• "Credit available for every patient" would require showing that credit terms are available to everyone.
• "In and out within an hour" would require a reliable record of time entries for the advertised procedure.

Remember, the substantiation must be in hand before the advertising is in print.

For more information about the FTC's substantiation standards, see the FTC Policy Statement Regarding Advertising Substantiation.

No matter what the claim, an ad should disclose any material information that is necessary to prevent the claim from being misleading. Disclosures of material information should be conspicuous and understandable to consumers.

Size of disclosures. A disclosure of material information should not be in "mice type" (e.g., type size that is 4 points or below is likely too small and the disclosure would likely be deemed inadequate). The closer the size of the disclosure's text is to the size of the advertising copy, the better.

Color of disclosures. The color of a disclosure's text should contrast with the background (e.g., red text against white background).

Placement and proximity. A disclosure should be proximate to the principal claim that it qualifies and should not be obscured by surrounding text or graphics. Generally, disclosures may appear at the bottom of an advertisement, but an asterisk or other mark should be used to adequately call attention to the disclosure.

Disclosures in social media. The principle that people should have the information they need to evaluate a claim applies with all forms of advertising, including social media. The simple requirement that disclosure be made "clearly and conspicuously" allows its exact form to vary depending on the medium. In the context of endorsements made on Twitter, for example, a hashtag like "#paid ad" may be sufficient.

Several FTC guides explain the FTC's standards for disclosures, including Big Print. Little Print. What's the Deal? How to Disclose Details and Dot Com Disclosures: Information About Online Advertising. For more complete information, please see the FTC's website.

Social couponing refers to all forms of digital coupons or vouchers, including those that can be shared via social media. Many providers of goods and services use marketers such as Groupon and LivingSocial to reach new customers. Unfortunately, the payment structures that underlie some social couponing programs may be legally problematic in the health care field.

When dentists provide services payable under a federal health care program, they may be prohibited from offering and/or awarding any social coupon discounts. For example, the Federal Anti-Kickback Statute prohibits any person from knowingly and willfully offering or paying cash to any person to induce the person to refer a patient for services for which payment may be made under a federal health care program. Depending on the structural arrangements, the payment to the social couponing party may violate this prohibition, and the social coupon arrangement may not fit within any of the safe harbor exceptions to the Anti-Kickback Statute.

Even if the dentist does not participate in a federal health care program, social couponing may have unintended consequences with respect to the dentist's contractual obligations. For example, if a dentist's contract with third party payors contains a "most favored nation" clause, guaranteeing an insurer the best price that the dentist charges for a particular service, the price charged pursuant to a social coupon arrangement may be argued to be the basis of a breach of this provision of the contract, as the payor may claim that the dentist must offer the same discount with respect to the insured individuals, or perhaps even require the dentist to rebate an equivalent per patient discount to the insurer.

For more on social couponing, consult your state dental association, and see the various state rules and ethics code as discussed in Legal Issues in Marketing a Dental Practice: Referral Gifts and Groupon Discounts.

Social media, including blogs and social networks, are broadening the concept of advertising. While consumer-generated social networks such as Yelp and Facebook present dentists with new tools for communicating with patients, the same legal and ethical obligations still apply. Beyond the traditional concerns for fairness and accuracy in advertising, which various jurisdictions and regulatory bodies continue to address, dentists should exercise caution when utilizing new media.

Privacy requirements are important in all advertising, and particularly in the context of social media. Dentists should be both cautious and proactive, always considering applicable federal and state privacy laws, such as HIPAA. Keep in mind that:

• The protected health information (PHI) covered by HIPAA extends beyond traditional patient records. A photo or video of a patient, even just sitting in the waiting area, may constitute PHI. Even merely revealing that an individual is a patient may violate privacy laws.
• Responding to a negative review on a social media site can result in a privacy law violation. For example, a HIPAA-covered entity must continue to protect information that information that a patient has already publicly disclosed.
• The terms and conditions for many websites and social networks, including Facebook, give the sites the right to access and use any personal information, even seemingly private messaging.

In light of the potential for inadvertent disclosure of PHI, and the risks associated with violating privacy laws, dentists should consider taking proactive steps to develop and implement policies for their own teams regarding the use of social networking tools.

All states have broad unfair and deceptive acts and practices laws, false advertising laws, or consumer protection statutes that prohibit false or deceptive advertising and marketing practices.

Most states regulate advertising through an unfair and deceptive acts and practices (UDAP) statute.¹ In general, UDAP statutes are very similar and typically enumerate particular acts and practices as unlawful, including the following:

• Causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services
• Causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another
• Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which they do not
• Representing that goods are original or new if they are deteriorated, reconditioned, reclaimed, used, or secondhand
• Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another
• Advertising goods or services with intent not to sell them as advertised
• Advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity
• Making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions
• Knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service²

As noted previously, all states have laws that prohibit false or deceptive advertising.³ These laws generally prohibit false or misleading representations in connection with offers to sell goods or services.⁴ In many states, a violation of the false advertising statute constitutes a misdemeanor⁵ and triggers criminal penalties.

Some states regulate advertising through consumer protection statutes. In certain states, these consumer protection statutes resemble UDAP laws,⁶ while in others the consumer protection statutes prohibit consumer fraud or specified acts deemed unconscionable.⁷

In addition, states generally have more narrow laws and regulations regulating specific types of conduct. For example, many states have laws specifically regulating price reductions or comparisons.⁸

Advertising for dental services is subject to state UDAP, consumer protection, and other advertising-related laws. Thus, dentists who advertise their services must comply not only with state laws that specifically regulate dentistry advertising, but also with state legal standards that apply to advertising and marketing practices in general. Typically, state advertising and consumer protection laws can be enforced by the state attorney general or a separate administrative agency.⁹ Consumers and competitors who allege harm from an advertising or marketing practice generally can bring a legal action against the marketer or publisher under applicable advertising-related laws.

¹See, e.g., ALA. CODE § 8-19-5 (2007); MICH. COMP. LAWS § SEC. 445.903 (2007); NEB. REV. STAT. § 87-302 (2007); TENN. CODE ANN. § SEC. 47-18-104 (2007); UTAH CODE ANN. § 13-11-4 (2007); OR. REV. STAT. § SEC. 646.608 (2007).

²See, e.g., TEX. BUS. & COM. CODE ANN. § 17.46 (2007); MICH. COMP. LAWS § SEC. 445.903.

³See, e.g., ARIZ. REV. STAT. ANN. § 13-2203 (2007); HAW. REV. STAT. § 708-871 (2007); KY. REV.
STAT. ANN. § 517.030 (WEST 2007); MD. CODE ANN. COM. LAW § 11-703 (WEST 2007); N.M.
STAT. § 57-15-1 (2007); VT. STAT. ANN. TIT. 13, § 2005 (2007).

⁴Id.

⁵Id.

⁶See, e.g., Colorado Consumer Protection Act, COLO. REV. STAT. § 6-1-105 (2007).

⁷See, e.g., IOWA CODE § 714.16 (2007); N.J. STAT. ANN. § 56:8-2 (West 2007).

⁸See, e.g., ALASKA ADMIN. CODE tit. 9 §§ 05.020-05.030 (2007); ILL. ADMIN. CODE tit. 14 §
470.210-270 (2007); 940 MASS. CODE REGS. 6.03-04 (2007)

⁹See, e.g., 815 ILL. COMP. STAT. 505/7 (2007); N.H. REV. STAT. ANN. § 358-A:4 (2007)

All states have laws or regulations that specifically prohibit false, deceptive, or unsubstantiated representations in advertising and these are equally applicable to dentists. These prohibitions, when applied to dentists, may be punishable by suspension, revocation, or limitation of a dentist's license to practice within the state, or by injunction, fine, and censure and reprimand.¹ New York, for example, prohibits licensed dentists from making claims that are "false, fraudulent, deceptive, or misleading," or "which cannot be substantiated by the licensee."²

A licensed dentist who violates these prohibitions is subject to censure and reprimand, suspension or revocation of the dentist's license, annulment of the dentist's license or registration, limitation on registration or issuance of any further license, a fine not to exceed $10,000 for each violation, a requirement that the dentist take a particular course of education or training, and a requirement that the dentist perform up to one hundred hours of public service.³

Similarly, Arkansas prohibits a licensed dentist from making any representation that is "false or misleading in any material respect" and requires that licensees "possess and rely upon information which would substantiate the truthfulness of any assertion or representation of material fact set forth in an advertisement."⁴ Upon finding that a licensee has violated these restrictions, the Arkansas State Board of Dental Examiners may suspend or revoke the dentist's license, place the dentist on probation for up to 18 months per violation, or impose a fine of up to $1,000 per violation.⁵

¹See, e.g., N.Y. EDUC. LAW § 6511 (McKinney 2007).
² N.Y. COMP. CODES R. & REGS. tit. VIII, §§ 29.1, 29.5 (2007).
³N.Y. EDUC. LAW § 6511 (McKinney 2007).
⁴4038-00-001 ARK. CODE R. V (Weil 2007).
⁵ARK. CODE ANN. § 17-82-316 (West 2007).

Most states specifically regulate the advertisement of dental specialties. For example, Tennessee prohibits any licensed dentists from claiming "to be a specialist, or specially qualified in any particular branch of dentistry, or to be giving special attention to any branch of dentistry," or claiming "to limit the dentist's practice to any branch of dentistry, until that dentist has complied with the additional requirements established by the board, and has been issued a certificate by the board authorizing" such specialty representations.¹

Michigan also prohibits licensed dentists from advertising "as limiting his or her practice to, as being specially qualified in, or as giving special attention to, a branch of dentistry" unless the dentist is certified by the Michigan Board of Dentistry as a specialist.²

In Maine, the Board of Dental Examiners found a dentist violated state laws and the Board's rules by his publication of advertisements that touted professional specialties. The Board imposed a $1,500 civil penalty on the dentist, suspended his permit for 15 business days, ordered a one-year probation period to follow the suspension (during which he was to attend an ethics course), and required him to obtain the Board's advance approval for any advertisements. After the dentist violated the order, the attorney general and board sued the dentist in state court to enjoin him from practicing.

¹TENN. CODE ANN. § Sec. 63-5-112 (2007).
²MICH. ADMIN. CODE r. 338.11525 (2007).

Many states have regulations specifically restricting the advertising of fees and discounts in connection with dental services. Here are a few examples of regulations that states have adopted.

Florida

Florida imposes the following disclosure requirements with respect to advertising of dental service fees:

An appropriate disclosure regarding advertised fees is necessary to protect the public since there is no uniform code available which would enable a fair and rational selection based upon advertised fees.

• Any advertisement containing fee information shall contain a disclaimer that the fee is a minimum fee only.
• Any advertised fee for a dental service shall state a specified period during which the fee is in effect or that service shall remain available at or below the advertised fee for at least 90 days following the final advertisement for that service.
• Any dental service for which a fee is advertised shall be accompanied either by a description of that service using the exact wording for that service contained in the American Dental Association's 'Code on Dental Procedures and Nomenclature' or by the specific ADA Code number or numbers which accurately and fully describes the advertised dental service…"¹

Florida also requires that advertisements for a free, reduced, or otherwise discounted service contain the following statement in capital letters and clearly distinguishable from the rest of the text in the advertisement:

THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.²

However, the above statement is not required if it appears in a classified directory devoted to advertising products and services at no cost or a reduced price, and in which the statement prominently appears in at least one place.³

Indiana

Under relevant Indiana regulations, licensed dentists who advertise a fee for a dental service must disclose in the advertisement a specified period during which the fee will be in effect, or the service must remain available at or below the advertised fee for a minimum period of 90 days following the final advertisement for the service.⁴ Fee advertising must also disclose "all components of providing that service without additional charges added thereto or without additional unstated restrictions."⁵ If the dentist charges a range of fees for a particular service, any advertisement of a fee for the service must disclose the fee range and "include a listing of all of the factors which cause the fee to vary."⁶

Furthermore, advertisements of discount offers in Indiana must disclose "the non-discounted or full price and the final discounted price," and the period during which the discount will be available.⁷ In addition, the discount must not be contingent upon referring potential patients or purchasing additional services.⁸

California

California dentistry regulations require that fee advertising be "accurate and precise" and disclose "all services customarily included by the dental profession as part of the advertised service, including but not limited to necessary diagnosis, radiographs, restorative treatment, drugs, local anesthesia or analgesia, materials, laboratory fees and post-operative care."⁹ When advertising fees, licensed dentists must also disclose any additional services that are not part of the advertised procedure but for which the patient will be charged, and disclose the fees for such additional services.¹⁰

As to discount advertising, California dentistry regulations require that such advertising disclose the dollar amount of the non-discounted fee, either the dollar amount of the discount fee or the percentage of the discount for the relevant service, the length of time, if any, the discount offer will be available, the specific groups who qualify for the discount, and any other applicable terms, conditions, and limitations.¹¹

¹FLA. ADMIN. CODE ANN. r. 64B5-4.003(1)-(4) (2007).
²FLA. STAT. § 456.062 (2007); FLA. ADMIN. CODE ANN. r. 64B5-4.003(5).
³FLA. STAT. § 456.062.
⁴828 IND. ADMIN. CODE 1-1-18(b) (2007).
⁵Id. at (c).
⁶Id. at (e).
⁷Id. at (d).
⁸Id.
⁹CAL. CODE REGS. tit. 16 § 1050 (2007).
¹⁰Id. tit. § 1050.
¹¹Id. tit. § 1051.

Circulating discounted dental service vouchers using social couponing sites like Groupon and LivingSocial may also violate various state rules and regulations. For example, many states have regulations that prohibit referral gifts and fee splitting between a dentist and a third party. Currently, little or no guidance has been given regarding whether a social coupon constitutes an advertisement or a referral.

When a dentist utilizes a social couponing company to offer discounts for new patients, the customer typically pays the company, which then shares a percentage of that payment with the dentist. This system, in which the fees collected by social coupons are based on the volume or value of patient referrals, and not on a fixed amount, may heighten the problematic nature of the arrangement under many states' regulations.

The Texas State Board of Dental Examiners rules, for example, make it illegal for a dentist to "give…to any third party…any cash…for securing or soliciting patients." While Texas provisions may allow such couponing if the cash amount "is set in advance, is consistent with the fair market value of the services, and is not based on the volume or value of any patient referrals," other similar state rules may not provide such "safe harbor."

In Oregon, regulations prohibit dentists from offering to split fees for services rendered with any person other than a partner, employee, or employer. In the fall of 2011, the Oregon Dental Board issued a statement indicating that use of social coupons may violate this rule. Groupon responded by proposing a new fee structure through which all fees paid by the patient will be passed through to the dentist who will then pay an advertising fee directly to Groupon. On May 8, 2012, the Oregon Board issued a letter to Groupon stating that the new fee structure would not violate the Oregon rule against fee splitting. While the social coupon companies' willingness to revise their business models to help dentists avoid violating state professional conduct rules may help with state fee splitting statutes, it remains unclear whether such changes would be helpful in addressing other state and federal statutes.

Offers of free or discounted services may also trigger restrictions on the manner in which other fees are charged to patients. In Illinois, for example, one regulation states that "it shall be unlawful…for any dentist to charge a fee to any new patient for any dental service provided at the time that such free examination or free dental services are provided."¹ In New Jersey, a similar law provides that "[s]ervices advertised as complimentary, free of charge or for a discounted fee shall be offered equally to all patients identified as eligible in the advertisement (for example "new patients"), regardless of the patient's third-party coverage."²

Although an argument may be made that social couponing platforms are merely advertising dental services rather than soliciting patients, it may be prudent for a dentist to await clear guidance in their jurisdiction before using these platforms. In addition to considering the federal rules and ethical issues, a dentist should seek appropriate legal guidance to applicable state regulations before advertising any type of discounted dental services, particularly when using a social coupon.

¹225 ILCS 25/45.
²N.J.A.C. 13:30-6.2.

Other important restrictions on specific types of claims in dentistry advertising are common among states. Some states have regulations prohibiting licensed dentists from advertising that the dentist can perform a particular procedure without the patient experiencing any pain.¹

Many states prohibit licensed dentists from claiming that the dentist provides superior dental services without adequate substantiation for the claim,² and some prohibit dentists from making any such superiority claim regardless of whether it is substantiated.³

In some states, it is unlawful for a licensed dentist to claim that a procedure is curative or preventative.⁴ Many states regulate the use of testimonials in dentistry advertising,⁵ and some states prohibit the advertisement of guarantees in connection with dental services.⁶

¹See, e.g., IDAHO CODE ANN. § 54-924(4)(b) (2007).
²See, e.g., IOWA AMIN. CODE § 650-26.1 (2007).
³See, e.g., FLA. STAT. § 466.019 (2007).
⁴See, e.g., MO. REV. STAT. § 332.321(14)(a) (2007).
⁵See, e.g., 3 COLO. CODE REGS. § 709-1 (2007).
⁶See, e.g., § 225 ILL. COMP. STAT. 25/45(h)(4) (2007).

The ADA and some state dental associations have ethics code provisions that govern dental advertising. While the ADA Principles of Ethics and Code of Professional Conduct (the ADA Code) is available to the public electronically or upon request (for a nominal handling charge), some state dental associations do not appear to make their ethics codes readily available to the public. Several state dental associations, including those of Alaska, Colorado, Illinois, Louisiana, Massachusetts, and Wisconsin, adhere to the ADA Code. Some state dental associations, such as the California Dental Association, have their own ethics codes that include provisions concerning dentistry advertising.

Under the ADA Code, the touchstone for judging the ethical propriety of any dentist's advertisement to the public is whether the ad, when judged in its context as a whole, is false or misleading in any material respect. According to Advisory Opinion 5.F.2 of the ADA Code, statements to be avoided are those that would:

• Contain a material misrepresentation of fact
• Omit a fact necessary to make the statement considered as a whole not materially misleading
• Be intended or be likely to create an unjustified expectation about results the dentist can achieve
• Contain a material, objective representation, whether express or implied, that the advertised services are superior in quality to those of other dentists, if that representation is not subject to reasonable substantiation.

Subjective statements about the quality of dental services can also raise ethical concerns. In particular, statements of opinion may be misleading if they are not honestly held, if they misrepresent the qualifications of the holder, or the basis of the opinion, or if the patient reasonably interprets them as implied statements of fact. Such statements will be evaluated on a case by case basis, considering how patients are likely to respond to the impression made by the advertisement as a whole. The fundamental issue is whether the advertisement, taken as a whole, is false or misleading in a material respect.

Social couponing also raises its own issues with respect to the ADA Code. For example, a rebate paid to a patient after a claim for the service has been submitted to an insurer may violate section 5.B., which provides that "[d]entists shall not represent the fees being charged for providing care in a false or misleading manner." In addition, under section 4.E., a dentist may not "accept or tender 'rebates' or 'split fees.'"

In May 2012, the ADA Council on Ethics, Bylaws and Judicial Affairs issued guidance regarding split fees in advertising and marketing services, stating that "[t]he prohibition against accepting or tendering rebates or split fees applies to business dealings between dentists and any third party, not just other dentists." According to Advisory Opinion 4.E.1., this prohibition is also applicable to dental treatments or procedures marketed via social coupons if the business arrangement between the dentist and marketer "allows the issuing company to collect the fee from the prospective patient, retain a defined percentage or portion of the revenue collected as payment for the coupon marketing service provided to the dentist and remit to the dentist the remainder of the amount collected." Even if a social coupon company revises its business arrangements to avoid violating state professional conduct rules, dentists considering use of a social coupon should exercise caution and seek advice from a qualified lawyer.

Under the California Dental Association's Code of Ethics, it "is unethical for a dentist to mislead a patient or misrepresent in any material respect either directly or indirectly the dentist's identity, training, competence, services, or fees," and "it is unethical for a dentist to advertise or solicit patients in any form of communication in a manner that is false or misleading in any material respect."¹

The ethics code of California's dental association also requires that, when a dentist compensates a representative of the press or other communication medium for disseminating an advertisement for the dentist's services, the dentist must disclose this fact in the advertisement.² Additionally, the ethics code advises that subjective representations raise ethical concerns and that the California Dental Association evaluates such advertisements on a case-by-case basis in determining whether a subjective claim is false or misleading.³

¹Cal. Dental Assoc. Code of Ethics § 6A.
²Id. § 6.A.2.
³Id. § 6.A.4.

It is clear that "truth in advertising" is of importance to the profession of dentistry as well as to regulators. Some may view ethics codes, rules and regulations as restrictive, yet savvy dentists know they can be used as a resource in developing professional and creative marketing tools for their dental practices. And truthful advertising is a great foundation for building a trusted dentist-patient relationship.

While there appear to be a number of commonalities in the terms for advertising rules and regulations, dentists must be mindful that state laws do vary. The importance of knowing the law applicable in the jurisdiction where dentists practice must be underscored. With support from constituent and component dental associations, and legal counsel where needed, advertising rules can be readily accessed and navigated to achieve a dentist's advertising objectives.