(1) Policy Statement. The lack of
sophistication on the part of many of the public concerning acupuncture, the
importance of the interests affected by the choice of an acupuncturist and the
foreseeable consequences of unrestricted advertising by acupuncturists which is
recognized to pose special possibilities for deception, require that special
care be taken by acupuncturists to avoid misleading the public. The
acupuncturist must be mindful that the benefits of advertising depend upon its
reliability and accuracy. Since advertising by acupuncturists 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 an acupuncturist who is certified to practice in
(b) Certificate holder -
Any person holding a certificate to practice acupuncture in the State of
Tennessee. Where applicable this shall include partnerships and/or
(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 her particular needs.
(d) 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 (Chapter
(a) Fixed Fees. Fixed
fees may be advertised for any service. 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 certificate holder's customary or usual fee charged
for the service; and
certificate holder 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.
(d) 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.
Period of Advertised Fees.
1. 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.
2. 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.
Advertising Content. The following acts
or omissions in the context of advertisement by any certificate holder shall
constitute false or fraudulent 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 certificate holder is better than another when
superiority of services, personnel, materials or equipment cannot be
(b) The misleading
use of an unearned or non-health degree in any advertisement.
(c) Promotion of professional services which
the certificate holder knows or should know are beyond the certificate holder's
ability to perform.
of communication which intimidate, exert undue pressure or undue influence over
a prospective client.
appeals to an individual's anxiety in an excessive or unfair manner.
(Chapter 0880-12-.20, continued)
(f) The use of any personal testimonial
attesting to a quality of competency of a service or treatment offered by a
certificate holder 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 certificate
holder can achieve.
communication of personal identifiable facts, data, or information about a
patient without first obtaining patient consent.
(i) Any misrepresentation of a material
(j) The knowing suppression,
omission or concealment of any material fact or law without which the
advertisement would be deceptive or misleading.
Statements concerning the benefits or
other attributes of acupuncture procedures or products that involve significant
risks without including:
1. A realistic
assessment of the safety and efficiency of those procedures or products;
2. The availability of
necessary to avoid deception, descriptions or assessment of the benefits or
other attributes of those alternatives.
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 Committee may require the certificate holder to furnish data or other
evidence pertaining to those sales at the advertised fee as well as other
(o) Misrepresentation of a
certificate holder's credentials, training, experience, or ability.
Failure to include the corporation,
partnership or individual certificate holder'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 certificate
holders practicing at a particular location shall:
1. Upon request provide a list of all
certificate holders practicing at that location; and
2. Maintain and conspicuously display at the
certificate holder's office, a directory listing all certificate holders
practicing at that location.
Failure to disclose the fact of giving
compensation or anything of value to representatives 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 compensation apparent.
(Chapter 0880-12-.20, continued)
(r) After thirty (30) days of the certificate
holder's departure, the use of the name of any certificate holder 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.
or implying that a certain certificate holder provides all services when any
such services are performed by another licensee.
(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
Advertising Records and Responsibility
(a) Each certificate holder 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 or certified
professional employees acting as an agent of such firm or entity.
(b) Any and all advertisements are presumed
to have been approved by the certificate holder named therein.
(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 certificate holder 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 certificate holder 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
parts 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 inapplicability 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 instance.