(1) Policy Statement. The lack of
sophistication on the part of many of the public concerning medical services,
the importance of the interests affected by the choice of a physician and the
foreseeable consequences of unrestricted advertising by physicians which is
recognized to pose special possibilities for deception, require that special
care be taken by physicians to avoid misleading the public. The physician must
be mindful that the benefits of advertising depend upon its reliability and
accuracy. Since advertising by physicians is calculated and not spontaneous,
reasonable regulation designed to foster compliance with appropriate standards
serves the public interest without impeding the flow of useful, meaningful, and
relevant information to the public.
(a) Advertisement. Informational
communication to the public in any manner designed to attract public attention
to the practice of a physician who is licensed to practice in
(b) Licensee - Any
person holding a license to practice medicine in the State of Tennessee. Where
applicable this shall include partnerships and/or corporations.
(c) Material Fact - Any fact which an
ordinary reasonable and prudent person would need to know or rely upon in order
to make an informed decision concerning the choice of practitioners to serve
his or her particular needs.
Bait and Switch Advertising - An alluring but insincere offer to sell a product
or service which the advertiser in truth does not intend or want to sell. Its
purpose is to switch consumers from buying the advertised service or
merchandise, in order to sell something else, usually for a higher fee or on a
basis more advantageous to the advertiser.
(e) Discounted Fee - Shall mean a fee offered
or charged by a person or product or service that is less than the fee the
person or organization usually offers or charges for the product or service.
Products or services expressly offered free of charge shall not be deemed to be
offered at a "discounted fee".
Advertising Fees and Services
Fixed Fees - Fixed fees may be advertised
for any service.
1. It is presumed unless
otherwise stated in the advertisement that a fixed fee for a service shall
include the cost of all professional recognized components within generally
accepted standards that are required to complete the service.
(b) Range of Fees. A range of fees
may be advertised for services and the advertisement must disclose the factors
used in determining the actual fee, necessary to prevent deception of the
Discount Fees. Discount
fees may be advertised if:
1. The discount fee
is in fact lower than the licensee's customary or usual fee charged for the
2. The licensee
provides the same quality and components of service and material at the
discounted fee that are normally provided at the regular, non-discounted fee
for that service.
Related Services and Additional Fees. Related services which may be required in
conjunction with the advertised services for which additional fees will be
charged must be identified as such in any advertisement.
Time Period of Advertised Fees.
Advertised fees shall be honored for those seeking the advertised services
during the entire time period stated in the advertisement whether or not the
services are actually rendered or completed within that time.
1. If no time period is stated in the
advertisement of fees, the advertised fee shall be honored for thirty (30) days
from the last date of publication or until the next scheduled publication
whichever is later whether or not the services are actually rendered or
completed within that time.
Remote Services. Any physician, except
those providing services on behalf of the Department of Health, Department of
Correction, or Department of Mental Health and Developmental Disabilities, who
pursuant to T.C.A. §
required to have control over and responsibility for medical services being
provided at any location other than the primary location or office at which he
or she practices medicine a majority of the time must have the following
included in any advertisement for that location and on the most conspicuous
sign at that location:
1. The physician's
2. An indication of what,
if any, specialty or board certification is held by the physician;
3. An indication of whether the
physician is available on-site or remotely.
Advertising Content. The following acts
or omissions in the context of advertisement by any licensee shall constitute
unethical and unprofessional conduct, and subject the licensee to disciplinary
action pursuant to T.C.A. §
(a) Claims that the services performed,
personnel employed, materials or office equipment used are professionally
superior to that which is ordinarily performed, employed, or used, or that
convey the message that one licensee is better than another when superiority of
services, personnel, materials or equipment cannot be substantiated.
(b) The misleading use of an unearned or
non-health degree in any advertisement.
(c) Promotion of professional services which
the licensee knows or should know is beyond the licensee's ability to
(d) Techniques of
communication which intimidate, exert undue pressure or undue influence over a
(e) Any appeals
to an individual's anxiety in an excessive or unfair manner.
(f) The use of any personal testimonial
attesting to a quality of competency of a service or treatment offered by a
licensee that is not reasonably verifiable.
(g) Utilization of any statistical data or
other information based on past performances for prediction of future services,
which creates an unjustified expectation about results that the licensee can
(h) The communication of
personal identifiable facts, data, or information about a patient without first
obtaining patient consent.
misrepresentation of a material fact.
(j) The knowing suppression, omission or
concealment of any materials fact or law without which the advertisement would
be deceptive or misleading.
Statements concerning the benefits or other attributes of medical procedures or
products that involve significant risks without including:
1. A realistic assessment of the safety and
efficiency of those procedures or products; and
2. The availability of alternatives;
3. Where necessary to avoid
deception, descriptions or assessment of the benefits or other attributes of
Any communication which creates an unjustified expectation concerning the
potential results of any treatment.
(m) Failure to comply with the rules
governing advertisement of fees and services, or advertising records.
(n) The use of "bait and switch"
advertisements. Where the circumstances indicate "bait and switch" advertising,
the Board may require the licensee to furnish data or other evidence pertaining
to those sales at the advertised fee as well as other sales.
(o) Misrepresentation of a licensee's
credentials, training, experience, or ability.
Failure to include the corporation,
partnership or individual licensee's name, address, and telephone number in any
advertisement. Any corporation, partnership or association which advertises by
use of a trade name or otherwise fails to list all licensees practicing at a
particular location shall:
1. Upon request
provide a list of all licensees practicing at that location; and
2. Maintain and conspicuously display at the
licensee's office, a directory listing all licensees practicing at that
(q) Failure to
disclose the fact of giving compensation or anything of value to representative
of the press, radio, television or other communicative medium in anticipation
of or in return for any advertisement (for example, newspaper article) unless
the nature, format or medium of such advertisement make the fact of
thirty (30) days of the licensee's departure, the use of the name of any
licensee formerly practicing at or associated with any advertised location or
on office signs or buildings. This rule shall not apply in the case of a
retired or deceased former associate who practiced in association with one or
more of the present occupants if the status of the former associate is
disclosed in any advertisement or sign.
(s) Stating or implying that a certain
licensee provides all services when any such services are performed by another
(t) Directly or
indirectly offering, giving, receiving, or agreeing to receive any fee or other
consideration to or from a third party for the referral of a patient in
connection with the performance of professional services.
Advertising Records and Responsibility
(a) Each licensee who is a principal partner,
or officer of a firm or entity identified in any advertisement, is jointly and
severally responsible for the form and content of any advertisement. This
provision shall also include any licensed professional employees acting as an
agent of such firm or entity.
Any and all advertisement are presumed to have been approved by the licensee
(c) A recording of
every advertisement communicated by electronic media, and a copy of every
advertisement communicated by print media, and a copy of any other form of
advertisement shall be retained by the licensee for a period of two (2) years
from the last date of broadcast or publication and be made available for review
upon request by the Board or its designee.
(d) At the time any type of advertisement is
placed, the licensee must possess and rely upon information which, when
produced, would substantiate the truthfulness of any assertion, omission or
representation of material fact set forth in the advertisement or public
Severability. It is hereby declared that the sections, clauses, sentences and
part of these rules are severable, are not matters of mutual essential
inducement, and any of them shall be rescinded if these rules would otherwise
be unconstitutional or ineffective. If any one or more sections, clauses,
sentences or parts shall for any reason be questioned in court, and shall be
adjudged unconstitutional or invalid, such judgment shall not affect, impair or
invalidate the remaining provisions thereof, but shall be confined in its
operation to the specific provision or provisions so held unconstitutional or
invalid, and the in applicability or invalidity of any section, clause,
sentence or part in any one or more instance shall not be taken to affect or
prejudice in any way its applicability or validity in any other