Tenn. Comp. R. & Regs. 1045-02-.08 - CORPORATE OR BUSINESS NAMES AND ADVERTISING

(1) Policy Statement. The lack of sophistication on the part of many members of the public concerning optometric services, the importance of the interests affected by the choice of an optometrist and the foreseeable consequences of unrestricted advertising by optometrists, require that special care be taken by optometrists to avoid misleading the public. The optometrist must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising by optometrists is calculated and not spontaneous, reasonable regulation designed to foster compliance with appropriate standards serves the public interest without impending the flow of useful, meaningful, and relevant information to the public.

(2) Definitions.

(a) Advertisement. Informational communication to the public in any manner designed to attract public attention to the practice of an optometrist who is licensed to practice in Tennessee.

(b) Licensee. Any person holding a license to practice optometry 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 making an informed decision concerning the choice of practitioners to serve his or particular optometric 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 merchandise, in order to sell something usually at 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 organization for any optometric 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."

(3) Advertising Fees and Services.

(a) 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 professionally recognized components within generally accepted standards that are required to complete the service.

2. If an optometrist advertises an examination fee or includes an examination as a service provided in an advertised fixed fee the examination findings shall include all pertinent tests and observations necessary to satisfy the standard of care. The following shall constitute the professionally recognized components to be included in the examination provided for the advertised fee and before the prescription requested is issued:

(i) Spectacles

(I) Visual acuity testing of each eye far and near point; and

(II) External examination including extra ocular motility and confrontation fields, and

(III) Refraction (objective and subjective); and

(IV) Co-ordination testing; and

(V) Opthalmoscopy; and

(VI) Biomicroscopy; and

(VII) Tonometry.

(ii) Contact Lenses:

(I) All of the components required for spectacles prescriptions; and

(II) Keratometer reading of cornea curves; and

(III) Biomicroscopic evaluation of lid health, tear film integrity and corneal integrity; and

(IV) Application of known diagnostic lenses to each eye to include evaluation of acuity, over refraction and biomicroscopic evaluation of lens fit with use of chemical dyes as indicated; and

(V) Adequate patient training in lens care, solutions, application and removal along with proper wearing schedule, warning signs, and recall intervals; and

(VI) Medically necessary follow-up examinations.

(b) Range of Fees. A range of fees may be advertised for all services except routine optometric services and the advertisement must disclose the factors used in determining the actual fee, necessary to prevent deception of the public.

(c) 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 service; and

2. The licensee provides the same quality and components of service and material at the discounted fee that are normally provided at the regular nondiscounted 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. If they are not the service shall be provided at the fee quoted in the advertisement.

(e) 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.

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.

(4) Advertising Content. The following acts or omissions in the context of advertisement by any licensee shall subject the license to disciplinary action pursuant to T.C.A. §§ 63-8-120(5), 638-120(12), 63-8-120(17) and 63-8-113(d).

(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 a professional service which the licensee knows or should know is beyond the licensee's ability to perform.

(d) Techniques of communication which intimidate, exert undue pressure or undue influence over a prospective patient.

(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 competence 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 performance or prediction of future services, which creates an unjustified expectation about results that the licensee can achieve.

(h) The communication of personally identifiable facts, data, or information about a patient without first obtaining patient consent.

(i) Any misrepresentation of a material fact.

(j) The knowing suppression, omission or concealment of any material fact or law without which the advertisement would be deceptive or misleading.

(k) Statements concerning the benefits or other attributes of 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; and

3. Where necessary to avoid deception, descriptions or assessment of the benefits or other attributes of those alternatives.

(l) 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, corporate or business name and 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 to the Board or its designee 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.

(p) Failure to include the corporation, partnership or individual licensee's name and 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 location.

(q) 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.

(r) Unless otherwise provided by purchase contract after thirty (30) days, 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 optometry 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 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 professional services.

(u) An ophthalmic lens, or contact lens may be guaranteed against defects but since the degree of help from the use of or from the results obtained in the use of the same, is dependent on some uncontrollable factors, any guarantee, warranty or representation expressed or implied as to the degree or amount of help or improvement which can be expected is prohibited.

(v) Defaming competitors by falsely imputing to them dishonorable conduct, inability to perform contracts, questionable credit standing or other false representations or falsely disparaging products, selling prices, values, credit terms, policies or services of competitors.

(5) Routine Optometric Service. An optometric service may be considered routine for and if it has the following characteristics:

(a) It is performed frequently in the optometrist's practice.

(b) It is usually provided at a set fee to substantially all patients receiving the service.

(c) It is provided with little or no variance in technique or materials.

(d) It includes all professionally recognized components within generally accepted standards.

(6) 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.

(b) Any and all advertisements are presumed to have been approved by the licensee named therein.

(c) A recording 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 or any assertion, omission or representation of material fact set forth in the advertisement or public communication.

(7) Required Disclosures. The advertising of prices or discounts from such prices of eyeglasses, spectacles, lenses, contact lenses, frames, mountings and prosthetic devices is permitted under the condition that such advertising includes and specifies the kind, type and quality of the advertised item and is not in violation of any other advertising rules of the Optometry Board.

(8) Corporate or Business Names.

(a) Requests for approval of corporate or business names must be submitted on an official form at the Board administrative office. Prior use of a corporate name in advertising the name must be submitted to and approved by the Board.

(b) Such requests will be maintained in the administrative office until the next scheduled Board meeting at which time that will be presented to and reviewed by the Board. If the Board, in its discretion, decides that the corporate name is appropriate and in compliance with all statutes and rules, the corporate name may be approved.

(c) Applicants will be notified of approval or denial by letter signed by the secretary of the Board as directed by the Board. A record of such corporate names will be kept in the administrative office.

(9) Severability. It is hereby declared that the section, clauses, sentences and parts of these rules are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if these rules would otherwise be unconstitutional or ineffective. If any one or more sections, clauses, sentences or parts 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 instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.

Notes

Tenn. Comp. R. & Regs. 1045-02-.08

Original rule filed May 15, 1981; effective July 22, 1981. Amended by Public Chapter 969; effective July 1, 1984. Repeal and new rule filed November 30, 1990; effective January 14, 1991. Amendment filed October 29, 1991; effective December 13, 1991. Amendment filed December 20, 2021; effective 3/20/2022.

Authority: T.C.A. §§ 4-5-204, 63-8-107, 63-8-107(c), 63-8-112, 63-8-112(1)-(3), and 63-8-115.