Marketing Your Optometric Practice

False and Misleading Advertising is prohibited by the Federal Trade Commission and by Many States in their Trade Practices Acts

What is false and misleading advertising?

False advertising is any published claim that is deceptive or untruthful. The Federal Trade Commission had determined that a representation, omission, or practice is deceptive if it is likely to: a) mislead consumers and b) affect consumer’s behavior or decisions about a product or service.

• A claim can be misleading if important information is missing, or the claim implies something that is false.
• In addition, when determining if that deception is unfair, the FTC will look to see if the injury it causes or is likely to cause is:
  • Substantial
  • Not outweighed by other benefits and
  • Not reasonably avoidable.

What can a doctor of optometry do to prevent a claim of false and misleading advertising?

• Advertising must tell the truth and not mislead consumers.
• Claims especially those that relate to health, safety, or product performance that are made must be substantiated.
• If a disclaimer or disclosure is made about a product it must be clear and conspicuous.
• When a product demonstration is provided, it must show how the product would perform under normal use.
• If you promise a refund to consumers, you must provide it.
• If a product is advertised as buy one get one free, this means that the customer will pay nothing for one item and no more than the regular price for the other item.

Unfair and Deceptive Trade Practices are prohibited both by the Federal Trade Commission and by many states unfair and deceptive trade practices laws.

What are some examples of unfair and deceptive trade practices?

• Bait and switch tactics
• Deceptive demonstrations or prices
• Defamation of the competition
• Fraudulent contests
• Fraudulent testimonials
• Misleading or unsubstantiated claims
• Misuse of the word free

What is a bait and switch tactic?

• Bait and switch is an illegal sales tactic in which a consumer is lured by a low price only to be told that the special offer is no longer available and then the person is steered to a higher priced product or a product that has a basis more advantageous to the advertiser.

Both federal and state law prohibit trade disparagement.

What is trade disparagement?

• Defamation of the competition is sometimes referred to as trade libel or trade disparagement.

What are the elements of trade disparagement or trade libel?

• The elements of trade libel are as follows:
  • A defendant made a false statement about the quality of a plaintiff’s products or services;
  • The statement was published; and
  • The plaintiff suffered monetary loss or harm because of the statement.

Deceptive pricing is prohibited.

What are some forms of deceptive pricing?

• Reduction in the Merchant’s former sales price.

“One of the most commonly used forms of bargain advertising is to offer a reduction from the advertiser’s own former price for an article. If the former price is the actual bona fide price at which the article was offered to the public on a regular basis for a reasonably substantial period of time, it provides a legitimate basis for the advertising of a price comparison. If the former price is genuine, the bargain being advertised is genuine. If the former price is fictious, the bargain being advertised is a false one.”

• Retail Price Comparison

“Another commonly used form of bargain advertising is to offer goods at prices lower than those being charged by others for the same merchandise in the advertiser's trade area (the area in which he does business). This may be done either on a temporary or a permanent basis, but in either case the advertised higher price must be based upon fact, and not be fictitious or misleading. Whenever an advertiser represents that he is selling below the prices being charged in his area for a particular article, he should be reasonably certain that the higher price he advertises do not appreciably exceed the price at which substantial sales of the article are being made in the area - that is, a sufficient number of sales so that a consumer would consider a reduction from the price to represent a genuine bargain or saving”  So long as valid retail comparisons are made in the trade area of the merchant, these pricing mechanism will pass muster with the Federal Trade Commission. 

• Comparison to the Manufacturer’s Suggested Retail Price

“Many members of the purchasing public believe that a manufacturer's list price, or suggested retail price, is the price at which an article is generally sold. Therefore, if a reduction from this price is advertised, many people will believe that they are being offered a genuine bargain. To the extent that list or suggested retail prices do not in fact correspond to prices at which a substantial number of sales of the article in question are made, the advertisement of a reduction may mislead the consumer.”

[i]https://www.ecfr.gov/current/title-16/chapter-I/subchapter-B/part-233

What can I do if a negative rating, review or comment about my practice is posted on a blog or website?

It has become very common for customers to post about their customer experience on various Internet Rating sites such as Yelp, Amazon, Angi, etc. Unfortunately, often it is the customer who feels he has had a bad experience who is most likely to take the time to complete one of these website rankings. In addition, according to the Pew Research Center, “Fully 82% of U.S. adults say they at least sometimes read online customer ratings or reviews before purchasing items for the first time.”

[ii]https://www.pewresearch.org/internet/2016/12/19/online-reviews/

So, what can you do to overcome a negative review?

If most of your other rankings are positive, you may be able to safely ignore the negative review knowing that one negative review among many positive reviews will not get as much credence. If, however, there are limited reviews on your site, and the majority of those are negative, you may decide to make it a practice that when someone compliments you to follow up with a thank you and a request that they reflect what they have told you into a selected review forum. Remember, that these testimonials must be real. Paying for positive testimonials would constitute an unfair and deceptive practice.

Be careful when deciding to respond to a negative review. Often this sort of response serves to escalate the tension and perhaps even bring more attention to the complaint. When formulating your response remember two things:

• Avoid violating HIPAA and state privacy law.
• Recognize that your audience is not the individual comment creator but all the other people who will see your response and make their own judgments based on your response.

A productive response would be “We are sorry that you feel that way. We treat many patients who are very satisfied with our work. Please call our office to let us know what we do to make things right.”

Can I use AOA materials or other existing materials in promoting my practice?

• Using material from other parties may be permissible provided you can obtain consent from the other party. You wish to include a newspaper article which identified your practice as a child friendly practice. This material, the newspaper article, for example is a copyrighted work. As a copyrighted work, it is protected from unauthorized use.
• Copyright laws make it illegal to use or copy any copyright protected work without obtaining the permission of the copyrighted owner unless it falls within one of the legal exceptions. These exceptions are extremely narrow and unlikely to apply in your situation. One exception is for material in the public domain. Material in the public domain is no longer subject to copyright protection. Project Gutenberg is perhaps the best-know destination for public domain books.
• However, if you are looking for more recent material chances are it will be protected by copyright. The other exception to copyright protection is fair use. Fair use permits the use of limited portions of the work, including quotes for such purposes as commentary, criticism, new reporting, and scholarly reports.
• Your best bet is to secure permission from the author to use the copyrighted material before you incorporate it on your website. This can be done via a simple license agreement. Your lawyer can assist you in determining what constitutes “fair use” of third-party materials, whether materials are in the public domain, and how to properly use various materials in connection with marketing your practice.

Are there any restrictions if a Doctor of Optometry sells eyeglasses, contacts, and other items through the internet, mail or over the phone and then ship them to my customer?

• FTC’s Mail, Internet, or Telephone Order Merchandise Trade Regulation Rule will apply to transactions where a Doctor of Optometry sells eyeglasses, contacts, and other items through the internet, mail or over the telephone and then ships them to his/her customer.
• “The Rule requires that when you advertise merchandise, you must have a reasonable basis for stating or implying that you can ship within a certain time. If you make no shipment statement, you must have a reasonable basis for believing that you can ship within 30 days. That is why direct marketers sometimes call this the "30-day Rule.
• If, after taking the customer’s order, you learn that you cannot ship within the time you stated or within 30 days, you must seek the customer’s consent to the delayed shipment.
• If you cannot obtain the customer’s consent to the delay -- either because it is not a situation in which you are permitted to treat the customer’s silence as consent and the customer has not expressly consented to the delay, or because the customer has expressly refused to consent -- you must, without being asked, promptly refund all the money the customer paid you for the unshipped merchandise.”

Does our optometry practice face any restrictions using telephone, email, fax, or text for advertising or other communication purposes?

• Suppose a Doctor of Optometry decides he wants to use a new list to mine for new appointments or to advertise a new line of eyewear he has received. This simple marketing idea could bring into play some federal law requirements.
• The Federal Trade Commission established the Do Not Call Registry (DNC Registry) under the federal telephone sales rule (TSR). Consumers may add their phone numbers to the DNC registry to limit the telemarketing calls they receive. If a customer is on the do not call registry, they should not receive a phone call.
• It's against the law (Telephone Consumer Protection Act) to call (or cause a telemarketer to call) any number on the registry (unless the seller has an established business relationship with the consumer whose number is being called, or the consumer has given written agreement to be called). TSR violations can result in civil penalties of up to $16,000 per violation.
• The Telephone Consumer Protection Act also prohibits unsolicited calls to residential or cell phones using automated dialing or prerecorded messages. It also prohibits unsolicited texts to cell phones.
• The CAN-SPAM Act is a federal law that applies to commercial messages sent via email CAN-SPAM establishes requirements for commercial email messages such as the requirement that each email give the recipient the right to opt out of future emails. The penalties for the CAN-SPAM violation can be severe. Each separate email in violation of the CAN-SPAM act is subject to penalties of up to S16,000.

Does HIPAA impact a health care provider’s marketing effort?

• “The HIPAA Privacy Rule gives individuals important controls over whether and how their protected health information is used and disclosed for marketing purposes. With limited exceptions, the Rule requires an individual’s written authorization before a use or disclosure of his or her protected health information can be made for marketing.”

  [iii]https://www.hhs.gov/sites/default/files/ocr/privacy/hipaa/understanding/coveredentities/marketing.pdf

• The Privacy Rule utilizes a three-prong approach in the application of the HIPAA privacy rule for health care marketing:
• First, one must determine what constitutes “marketing” under the rule?
• Determine what treatment and health care operations do not constitute “marketing.”
• Requiring individual authorizations for all uses or disclosures of protected health information for marketing purposes with limited exceptions.

What constitutes marketing under the HIPAA rule?

• Marketing is defined as making a communication about a product or service that encourages recipients of the communication to purchase or use the product or service. If a communication is marketing, then the communication can only occur if the covered entity first obtains an individual’s authorization.

What prior authorization is sufficient to condone the marketing effort?

• A covered entity must obtain an authorization for any use or disclosure of protected health information for marketing, except if the communication is in the form of:

(A) A face-to-face communication made by a covered entity to an individual; or

(B) A promotional gift of nominal value provided by the covered entity.

• (ii) If the marketing involves financial remuneration, as defined in paragraph (3) of the definition of marketing at § 164.501, to the covered entity from a third party, the authorization must state that such remuneration is involved.
• “An authorization must specify a number of elements, including
  • a description of the protected health information to be used and disclosed,
  • the person authorized to make the use or disclosure,
  • the person to whom the covered entity may make the disclosure,
  • an expiration date, and,
  • in some cases, the purpose for which the information may be used or disclosed”

    [iv]https://www.hhs.gov/hipaa/for-professionals/faq/264/what-is-the-difference-between-consent-and-authorization/index.html

What treatment or health care operations do not constitute marketing under HIPAA?

• There are three categories of exceptions to the definition of marketing under the act. “A communication is not marketing if it is made to describe a health-related product or service that is provided by or included in a plan of benefits of the covered entity making the communication, including communications about:
  • The entities participating in a health care provider network or health plan network; replacements or enhancements to a health plan; and
  • Health related products or services available only to a health care plan enrollee that add value to, but are not part of, a plan of benefits.
• Secondly, a communication is not marketing if it is made for the treatment of an individual. For example, a pharmacy mails prescription refill reminders to patients or contracts with a mail house to do so.
• Thirdly, a communication is not marketing if it is made for case management or care coordination for the individual, or to direct or recommend alternative treatments, therapies, health care providers or settings of care to an individual.

So what are the main points a Doctor of Optometry needs to remember to limit their liability when marketing their practice?

• Your advertising should not be false or misleading.
• Don’t engage in any unfair or deceptive trade practices such as bait and switch, deceptive demonstrations or prices, defamation of the competition, fraudulent contests, fraudulent testimonials, misleading or unsubstantiated claims or misuse the word free.
• Recognize that these rules also apply to Internet Based Advertisements
• Respect Intellectual Property and seek a license agreement before you use copyrighted material.
• Don’t contact potential clients if they are on the Do Not Call Registry list.
• Don’t market utilizing robocalls if that violates the Telephone Consumer Protection Act
• Be careful in your use of mailing lists and respect emailers opt out rights under the CAN-SPAM Act
• Make sure you understand and avoid those circumstances where a client inquiry could be a prohibited marketing contact under HIPAA.

How should a doctor of optometry respond to a negative online review?

In today’s social media world, in which people seek out information about business online, it makes sense to take affirmative steps to address bad reviews and encourage patients to leave good reviews.  Two great suggestions were made in the recent article How to Handle Bad Reviews and Ratings that appeared in AOA news article on practice management on March 23, 2023.  The first was to “turn lemons into lemonade.”  If you can respond to the negative review in a way that convinces the reader that the reviewer got it wrong, you’ll negate the negative review.  It’s also important to respond to all reviewers including the positive reviews. Just remember in both cases, HIPAA prohibits the disclosure of protected health information – so posting specific information about the patient who left the review is prohibited.  

            Encouraging patients to leave and post reviews is definitely permissible.  Where a doctor of optometry can run into trouble if they engage a so-called “reputation management company” that claims it can boost customer reviews and ratings, is if that strategy is based on the posting of fraudulent reviews.  According to the Federal Trade Commission, you need to make sure that you know what the reputation management company is really doing. The reputation management company) may not say explicitly that they get results by writing fake positive reviews of your business or fake negative reviews of your competitor.  But you can be held responsible for what they do on your behalf and review platforms could suspend or remove your accounts and listings.” (See Federal Trade Commission-Soliciting and Paying for Online Reviews: A Guide for Marketers )

            The other trap which awaits the unwary doctor of optometry is if you disclose patient data inadvertently when responding to a patient review.   In March of 2022, The Department of Health and Human Services (HHS) Office of Civil Rights (OCR) imposed a $50,000 monetary penalty on a North Carolina dental practice that disclosed patient identifying information in response to a negative online review.  This case is a reminder that healthcare providers risk liability for a HIPAA privacy violation if they include patient information in their postings on online platforms.  Similarly, in 2019 another dental practice paid $10,000 pursuant to a resolution agreement with HHS OCR for disclosing a patient’s personal health information (PHI) in its response to a patient’s review.  PHI disclosed included the patient’s last name, details of her dental treatment plan, insurance, and cost information.

            So how should a Doctor of Optometry deal with a negative online review?  As the examples above illustrate, a doctor of optometry’s correct response would be measured and thoughtful.  Under no circumstances should personal health information including a confirmation that the person was a patient or the disclosure of any individually personally identifiable health information including such things as the person’s name or address be disclosed.  Specific treatment plans for that individual should not be discussed.

            Doctors’ practices are advised to have a policy regarding the uses and disclosure of PHI on online platforms.  In the event of a complaint to the HHS Office of Civil Rights, the OCR will also look to see if such a policy exists as part of its investigation.  This policy can be included in the practices overall HIPAA compliance policy.  Failure to have a policy will be considered evidence of a lack of compliance.  The policy should specifically define what constitutes PHI and explain that this information cannot be disclosed. The Privacy Rule protects all "individually identifiable health information" held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper, or oral. The Privacy Rule calls this information "protected health information (PHI)." “Individually identifiable health information” is information, including demographic data, that relates to:

• the individual’s past, present or future physical or mental health or condition,
• the provision of health care to the individual, or
• the past, present, or future payment for the provision of health care to the individual, and that identifies the individual or for which there is a reasonable basis to believe can be used to identify the individual. and
• individually identifiable health information includes many common identifiers (e.g., name, address, birth date, Social Security Number). As part of the policy, the doctor of optometry should create a preapproved response to a negative review.

            It is so important to use a preapproved response.  Unfortunately, what happens in some cases is that a practice responds in haste and or in anger without really thinking about what it is doing.  In these cases, liability almost always follows.  For example, in the North Carolina dental case, the patient left a negative review using a pseudonym on a search engine page.  The doctor responded promptly  to rebut the unsubstantiated accusations in the negative review.  The response revealed the patient’s full name and details about the services he received, claiming that the patient never came back for his scheduled appointment.”  The doctor further wrote “From the foregoing, it’s obvious that (the patient)’s level of intelligence is in question, and he should continue with his manual work and not expose himself to ridicule.  Making derogatory statements will not enhance your reputation in this area (name of patient). Get a life.”

            Perhaps a better and significantly cheaper response would have been “ We value feedback about the patient experience with our care providers.  Out of consideration for patient’s privacy rights, we do not disclose any patient information on public forums. However, this description does not comport with our usual practices, and we disagree with the allegations it contains.  We encourage patients who wish to register a complaint to contact our office by phone or email so we can further discuss their experience.”

 Finally, the doctor of optometry may not be without recourse when dealing with an inaccurate review.  A doctor of optometry should consult with his or her attorney to evaluate potential legal options in responding to the review.  For example, a negative review if factually incorrect could constitute defamation.  A cease and desist letter regarding the inaccurate publication could be enough to convince the reviewer to remove the negative review.  In sum, when a doctor of optometry considers how to handle bad reviews and ratings, remember to be mindful of the obligations imposed by the Federal Trade Commission and one’s duties under the Health Insurance Portability and Accountability Act.