Marketing vs. Laws: Tips That Might Keep You Out of Hot Water

In the medical aesthetics industry, marketing is a bit more difficult than in other retail segments. It might seem to make sense for a medical aesthetic facility, medical spa, or laser clinic to invest in a flashy ad campaign, complete with lavish praise from patients and offers of discounts; however, going down this path may attract the attention of not only prospective clients, but also state regulators. Here are some ways medical aesthetic practices get in trouble with their marketing efforts, as well as some ways to conduct compliant advertising campaigns.

Understanding the Rules

Even though medical aesthetic businesses tend to engage in the same marketing techniques as other retail businesses—including websites, social media, and print advertising—it is important that their owners and operators remember that these practices are, above all, medical practices. And because they are medical in nature, they are subject to the same rules and regulations that govern other, more traditional medical institutions, such as doctor’s offices and hospitals.

Because of this, the ways that a medical aesthetic practice can advertise are very restricted. The specifics of these restrictions vary from state to state, but they all tend to revolve around the notion that medical care is something that people need rather than choose to indulge in, so any advertising for medical facilities should deal only in facts.

This idea was obviously conceived with traditional medical outlets in mind. For them, the practice of medicine should not be about making money—it should be treating patients in need in their best interest. With this idea in mind, an advertisement for a physician’s services is expected to convey that the physician is a medical doctor, highlight his or her specializations and board certifications, and reveal his or her pricing in an honest and straightforward manner. Furthermore, physicians cannot make grandiose claims of life-changing results or claims of professional superiority—they must only deal in facts.

Of course, medical aesthetic practices are not traditional medical practices, and these somewhat high-minded ideals would seem to run counter to their goals. Medical aesthetic practices deal exclusively in elective procedures and, therefore, may be tempted to make certain claims in order to convince people to choose them over their competitors. However, because medical aesthetic practices are medical practices (it is right there in the name), they must still abide by the rules that govern medical advertising—they must be totally honest.

• They must specify who is performing medical treatments and what their qualifications are;
• They must present their pricing in a straightforward manner; and
• They must not attempt to compare themselves to competitors.

Therefore, if a medical aesthetic practice’s advertising includes words such as “best,” “greatest” or “amazing,” that facility is likely in violation of its state’s medical advertising statutes. A medical spa may operate like a retail outlet, but it cannot advertise itself like one.

Another thing to keep in mind is that if a practice is owned or co-owned by someone who is not a physician—a nurse, nurse practitioner, or entrepreneur, for example—it must make clear in its advertising that it is a physician who is advertising for medical services. For example, if a salon owner contracts with a physician to administer Botox treatments at his or her facility, the salon cannot advertise that it is offering Botox injections—it must specify that the physician is providing that service.

Websites are typically where issues regarding these types of distinctions are found. Many medical aesthetic practice websites state that their treatments are provided by “licensed laser technicians” or “medical aestheticians.” Unfortunately, in most states there are no actual laser certifications, and under no circumstances is any aesthetician permitted to perform medical procedures. The presence of titles such as these on a practice’s website implies that the facility is not structured properly, and it calls into question the credibility of the physician or physicians who are supposed to be overseeing the medical aspects of the practice.

Employees of state regulatory agencies—which are almost always underfunded and understaffed—often simply browse the websites of medical aesthetic practices to determine which of these businesses should be investigated. Using terms such as the ones mentioned above on your website is a good way to attract unwanted attention from regulators, regardless of whether or not your employee swears that he or she is a medical aesthetician. If you distribute advertising materials using these titles, whether online or via other channels, your chances of being investigated are better still.

If a practice is found to be in violation of state regulations regarding medical advertising, it can incur severe financial penalties, and its physicians may even be subject to the suspension or revocation of their licenses. Regulatory agencies take issues such as these—which can rise to the level of “practicing medicine without a license”—extremely seriously.

The bottom line for owners and operators of medical aesthetic practices is that their advertising is under a great deal of scrutiny—far more than they may think. The requirements for medical advertising vary from state to state, so it is important to consult a health care attorney who is familiar with the regulations that govern medical advertising in your state before launching a marketing campaign in order to learn what is and is not legal. (Author’s note: The American Med Spa Association (AmSpa) works with a national law firm that focuses on medical aesthetic legalities, and as a member, you receive a discount off of your initial consultation, along with a number of other great benefits. To learn more, visit www.americanmedspa.org.)

How to Use Testimonials

If a patient of your medical aesthetic practice is over the moon about an experience there, you may be inclined to ask him or her to provide a testimonial that can be used for marketing purposes. However, there are limitations to the ways in which patient testimonials can be used in advertising for health care providers and, for reasons we’ve previously discussed, medical aesthetic practices must also abide by those rules.

Generally speaking, most states forbid hyperbolic testimonials that use statements such as, “Dr. Brown is the best doctor in the city!” As previously established, advertising for medical institutions must be based on facts, experience and credentials, so medical spa owners and operators must make sure that the testimonials they use are factually correct and address only the customer’s experience with the practice he or she is endorsing.

It is also important that you obtain proper consent from your patients before you post or distribute their testimonials. Even though the patients’ participation may seem to represent tacit consent, you must still go through proper channels to make sure that you are not opening yourself up to patient privacy issues. After all, acknowledging that a patient enjoyed a visit to your facility intrinsically reveals that he or she is your patient, which is a HIPAA violation. Again, speak with a knowledgeable health care attorney to learn what you are required to do to remain compliant when using testimonials.

Mind Your Business Partners

If a medical aesthetic practice is marketing its services via deal websites, such as Groupon (which is of questionable legality in the first place—again, consult with your health care attorney before launching such a campaign to determine if it is allowed in your state), it should make sure that everything posted on those sites and disseminated via e-mail by those outlets conforms to the rules of health care advertising previously discussed. These sites sometimes create their own copy and distribute it without running it by the client first. Regardless of whether or not it produced the copy, your practice would be the one facing blowback from state regulatory agencies, so make sure that you see everything associated with your practice before it is posted or sent.

Don’t Offer Incentives for Referrals

A medical spa operator may be inclined to create a promotion that offers, say, 50 percent off a Restylane treatment if you refer a friend to the practice. Although it might be perfectly fine for a salon or a traditional spa to offer such a deal on a facial, a medical practice making such an offer is essentially telling the world that it is giving monetary value for referrals, which is potentially a direct violation of local anti-kickback or patient solicitation statutes. Laws regarding kickbacks vary from state to state, but most states with powerful, influential medical boards consider such promotions to represent kickbacks. For the same reason, it’s generally a bad idea to offer gift cards in exchange for referrals.

Putting Your Best Foot Forward

Medical aesthetic practices must use a great deal of caution when conducting marketing campaigns. If a medical spa’s ad campaign is properly executed, it can be very effective; however, the practice must be very careful about what it says and what its patients say about it so that it does not run afoul of the strict statutes and regulations that govern medical advertising.