Most state dental practice acts and other state laws prohibit false, misleading or deceptive advertising. Many of these statutes provide that damages (in some cases treble damages plus attorneys’ fees) are available to the successful plaintiff. Some state laws regulating professionals also contain specific prohibitions on certain types of advertising claims. It is important to check the advertising regulations and rules in your state before advertising.
If the dental practice is planning to use a trade name, a licensing board permit will likely be required (these are sometimes called “fictitious” or “assumed” name permits). State laws regulating businesses may also require registration of assumed business names in either the state or county offices, depending upon the type of business entity in question.
The Federal Trade Commission (FTC) monitors ads and publicity efforts. The FTC provides helpful resources for businesses interested in federal advertising laws and policies, including unfair or deceptive advertising and federal warranty law.
Unfair or deceptive advertising can include:
• 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”
Before you send marketing information to patients (or have another party send it on your behalf), or disclose any patient information for marketing purposes, make sure you do not risk violating applicable federal, state, or local laws, such as consumer protection laws, advertising laws, laws regarding testimonials, privacy laws such as HIPAA, or your state’s laws regulating advertising by dentists. You should also understand the impact of any warranties made in an advertising communication.
Your state’s dental advertising laws and regulations may restrict the information that may be included in an advertisement, statements about specialties and services, the use of testimonials, claims about quality or results, the use of paid referral services, offers of gifts or inducements to patients or prospective patients, or statements about pain or sedation. These laws may require dentists to retain copies of advertisements for a period of time. For information about your state’s laws regulating advertising by dentists, contact a qualified attorney. Your state dental society may also have information about your state’s dental advertising laws.
Related References and Resources
• Advertising Basics for Dentists and Dental Associations: A Guide to Federal and State Rules and Standards
ADA.org/en/member-center/member-benefits/legal-resources
• Advertising and Marketing
http://business.ftc.gov/advertising-and-marketing
• Frequently Asked Advertising Questions: A Guide for Small Business
www.business.ftc.gov/documents/bus35-advertising-faqs-guide-small-business
35. What Rules Apply to Dental Specialty Claims?
Many states regulate the conditions under which a dentist who is a specialist may advertise the specialty. Many states also require that a general dentist who offers services in a specialty area clearly state in any advertisement that he or she is a general dentist. There are also ethical considerations.
Related References and Resources
• Advertising Basics for Dentists and Dental Associations: A Guide to Federal and State Rules and Standards
ADA.org/en/member-center/member-benefits/legal-resources
• ADA Principles of Ethics and Code of Professional Conduct
ADA.org/en/about-the-ada/principles-of-ethics-code-of-professional-conduct
36. Can I Use ADA Materials or Other Existing Material in Promoting My Practice?
Using material created by and belonging to others may be possible, depending on what you want to use, how you want to use it and whether you obtain permission as required by law.
Let’s take a specific example. Say you come across an article on a dental development and you want to place the article on your website — it’s good information, and you think it might impress your patients or attract new ones. It is likely that someone, probably the author or publisher, holds the copyright to that article. This is true whether or not the copyright owner has affixed a copyright notice to the article. To reprint the article in full, you will probably need permission from the copyright owner. It is best to secure written permission allowing you to copy the work and use it when, how, and where you want to. Failure to obtain such permission would in most cases be a violation of federal law.
The following works — published or unpublished — are generally covered by U.S. and international copyright laws:
• Text (written works of fiction and non-fiction)
• Musical materials (songs and musical compositions)
• Visual images and materials (illustrations, photographs, and Web page graphics)
Copyright laws make it illegal to use or copy any copyright protected work without obtaining the permission of the copyright owner, unless it falls within one of the narrow legal exceptions. Use of a copyright “notice” (i.e., “© 2014 John D. Smith”) is no longer required by law (although it is still a good idea to use such a notice on your own copyrighted material), so materials may be copyright protected even if you cannot find a copyright notice on them.
As noted above, there are some exceptions to the general rule requiring you to obtain copyright permission before using third-party material. One exception is for materials which are in the public domain (this includes some, but not all, materials published by the federal government). Another exception is “fair use,” which permits the use of limited portions of a work, including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports.
There are no “bright line” legal rules stating the specific number of words or percentage of a work allowed by fair use. Whether a particular use qualifies as fair use depends on all the circumstances. Your lawyer can help you determine what constitutes “fair use” of third-party materials, whether materials are in the public domain, and also how to properly use various materials in connection with marketing your practice.
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