Advertising pitfalls in the modern era of dental practice

Advertising for dentists has become a recurring issue given the legislative considerations and the logistical problems in meeting these. All dentists are familiar with “old fashioned” avenues of advertising, but the emergence of new forms of social media and avenues to advertise has trapped many members into promotions which, unwittingly in many cases, cause them to breach the DBA standards.

In particular, many members have been approached by web based advertising companies having no regard or responsibility for protection of health professionals compliance with regulatory requirements. In many cases dentists are not in control of the material which is published. Social media or “limited deal” sites have been increasingly breaching DBA standards and CROs have been alerting members of these breaches. In a number of cases the corporation for whom members work, or their employers have placed the advertisements. In other instances the dentist may have bought a “package” and left it up to the media company to design the advertising.

The Regulator

The DBA has set and polices the standards, and a recent publication (Fact sheet) on the AHPRA website states:

“For the first year of the scheme the Boards’ approach to advertising matters has been largely educational, by helping practitioners understand the law and the new requirements set down in each Board’s standards.

The National Boards will now take a more structured approach to addressing concerns about advertising. This will include a series of warnings to the practitioner, initially reminding them of their obligations in relation to advertising, and ultimately possible prosecution for non-compliance with the Board’s standards.”

Members are reminded that guidelines are published by DBA and failure to comply can result in a finding of unprofessional conduct. The 2010-2011 AHPRA Annual Report gives details about the classification of notifications received and notes that, as they have not acted to prosecute but have given some leeway in the matter of advertising, it is not represented in the current report. However ADA Branches are aware of a large number of breaches that have been reported, and in the interests of helping members to reduce their liabilities, the ADAVB has taken action to highlight these issues to members via newsletter items and personal contact when social media and other advertising breaches are found.

Section 133 of the National Law states that

‘a person must not advertise a regulated health service, or a business that provides a regulated health service, in a way that —

(a) is false, misleading or deceptive or is likely to be misleading or deceptive; or

(b) offers a gift, discount, or other inducement to attract a person to use the service or the business, unless the advertisement also sets out the terms and conditions of the offer; or

(c) uses testimonials or purported testimonials about the service or business; or

(d) creates an unreasonable expectation of beneficial treatment; or

(e) directly or indirectly encourages the indiscriminate or unnecessary use of regulated health services.’

Practitioners are held responsible for the style and content of all advertising material associated with the provision of their goods and services. Practitioners may not delegate accountability for ensuring the accuracy of advertising and compliance with these guidelines to an administrator, manager, director, media or advertising agency, or other unregistered person. In addition AHPRA has the right to pursue owners or unregistered persons with regard to advertising breaches.

Social media makes life more difficult

It may seem to many dentists that AHPRA would be better pursuing disciplinary matters other than advertising. But the rationale behind the standards is that dentists are health care providers and so are able to advertise health services within the guidelines. Unfortunately some practitioners are advertising services not considered a health service, and outside the DBA guidelines. In addition a number of dentists have come to grief over the past two years in connection with social media rather than established forms of advertising. There have been a number of media commentaries recently highlighting the need for organizations to develop a social media policy to regulate the use of these forms of communication in the workplace. AHPRA is aware of the need to update the standards to address these issues and it published “Common Advertising Breaches by Dental Practitioners” in March 2012, with a number of clear examples of breaches.

Unacceptable advertising via daily deals

Daily Deals, Living Social, All the Deals, DealFetch, Jumponit, DealWatch, Smarter Daily Deal and

Groupon style discount offers and similar advertisers have been attracting dental practices to offer their services via their online facilities, and the ADAVB has been asked whether in our view these are compliant with advertising guidelines promulgated by the Dental Board of Australia (DBA).

Those guidelines state:

To comply with s. 133 of the National Law and these guidelines, advertising of services must not:

… contain price information that is inexact, or fails to specify any conditions or variables to

an advertised price (see Section 6.5, ‘Advertising of price information’), or offers time‐limited discounts or inducements

Many of the advertisements for dental services that we have seen using these daily deals or specials involve time limited discounts, and so they would not comply with the DBA’s advertising guidelines.

If your advertisement includes words like “PROMOTIONAL VALUE EXPIRES ON [date]”, then your advertisement may be in breach of the DBA advertising guidelines.

Reports have also been received of some practices handing out flyers either in shopping centres orin the street, offering time limited discounts or special deals. These too would be in breach of the DBA guidelines.

In addition to advertising concerns, the use of social media such as Facebook has also led to substantiated complaints about misuse of private information and even notifications about inappropriate relationships and behavior of some health professionals. All members are urged to be cautious with use of these media with respect to patient information and identification. SMS messages have also been used as evidence in complaint cases.

At this stage all ADA Branches and GIL would urge practitioners to familiarize themselves with the requirements but accessing the following resources. Unfortunately the ADA Branch staff cannot “sign off” on any advertising material as it is outside their area of expertise and indemnity to do so. They can provide members with some limited advertising advice if contacted but may also suggest that you seek your own legal advice to ensure compliance with the registration standards.

Practitioners intending to advertise should make themselves familiar with

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