Healthcare Advertising Regulations You Need to Know
Advertising in the healthcare field can feel daunting. The truth is, if you want to advertise any product or service within the health sector, you’ll have much less freedom than if you were advertising sparkling water or a new dating app. That lack of freedom doesn’t mean, however, that you can’t use your creativity. In fact, the true creative challenge is coming up with a memorable ad campaign that still fits within legal parameters. In this article, we’ll give you the basic rundown of what you need to know about healthcare advertising regulations and give you sources on where to dig deeper.
When you think of healthcare advertising regulations, the first thing you think of is probably HIPAA, which stands for “The Health Insurance Portability and Accountability Act of 1996.” (Don’t worry, there won’t be a quiz.) Its job is to protect sensitive patient information. HIPAA requires healthcare providers to get consent before sharing any health data and regulates how doctors and hospitals can advertise and use customer information for marketing purposes.
One specific area in which advertisers need to keep HIPAA in mind is when it comes to data collection via website forms. When your ad sends someone to a landing page with a form, these forms must be absolutely secure in order to not risk leaking patient information. This would violate HIPAA laws. You’ll want to employ encryption and third-party data storage to ensure any information you collect stays private. You may also want to consider limiting the amount of HIPAA-protected information you ask for in your forms, just to be extra safe. HIPAA also prevents you from sharing patient testimonials without first getting written permission.
How do I know if my form needs to be HIPAA compliant?
There are two factors that determine whether your web forms need to be HIPAA compliant. But before we get to those, we should stress that your website and all forms should be secure regardless of whether HIPAA applies to you. Seeing that little lock icon helps your audience feel at ease that you will keep their data safe and secure.
Having said that: your forms need to be HIPAA compliant if 1) HIPAA applies to the service you offer, and 2) you are collecting electronic Protected Health Information (ePHI). Examples of HIPAA Covered Entities are healthcare providers, medical suppliers, entities who sell or provide medications, and anyone involved in billing or insurance. Examples of ePHI include anything related to mental or physical health conditions, care, or payment. It also includes individual identifying information such as name, address, date of birth, etc. For a more thorough breakdown of these rules, there’s a good guide here.
Those are the basics of HIPAA – the nitty gritty details are beyond the scope of this article. The fines for violating HIPAA can be steep, and for that reason, we recommend you entrust your advertising to someone who has experience navigating healthcare advertising laws. For a more thorough breakdown of HIPAA regulations, you can visit the CDC’s HIPAA page here or this page that discusses HIPAA violations.
Food and Drug Administration
As its name suggests, the FDA sets rules and guidelines for food, prescription medications, and certain medical services such as LASIK eye surgery.
When it comes to pharmaceuticals, the FDA requires that advertisers disclose:
- At least one use for the drug
- Its generic name
- Any major side effects (or all side effects)
Under the FDA rules, you are not required to disclose:
- Whether there is a generic version of the drug
- How quickly the drug can work
- If there is a similar drug available
- How prevalent the condition is
- Whether behavioral changes could achieve a similar result
- How likely the drug is to work
Federal Trade Commission
Another major player when it comes to healthcare advertising regulations is the FTC. The FTC reviews healthcare advertisements for over-the-counter drugs, supplements, and any other product that makes a health claim. If you allege that your product can reduce the risk of cancer, for example, the FTC is going to step in. Basically, any time you want to make a health claim about a product, you must tread lightly. This is another area too complex to fully dive into here. Just know that you’ll want to have your claims reviewed by a lawyer or other expert on FTC regulations.
Truth in Advertising Laws
It probably comes as no surprise to you that any health-related advertisement must be truthful! Many states have their own truth-in-advertising laws and regulations. You’ll want to familiarize yourself with the specifics of the laws in your state. In general, though, ads must be truthful, fair, and cannot mislead consumers by leaving out vital information. This should go without saying, but any medical professional should not advertise claiming to be a specialist if they don’t have certification in that specialty.
In short: be very cautious about your claims, and make sure you have documented evidence of any claims you do make. You can find a breakdown of further legal issues to keep in mind here.
Simply put, physicians are barred from making referrals to another healthcare provider if the physician (or a family member) has any kind of financial relationship with the provider. These laws also limit how physicians can be used in advertisements. (For more information on what is and isn’t allowed according to Stark Law, check out the breakdown here.)
Unfortunately, this article can’t possibly cover every single law. In addition to federal regulations, some states have their own restrictions. For example, testimonials are strictly forbidden in Illinois, Kentucky, New York, and West Virginia. (For a breakdown of laws by state, check out this list.)
If these regulations seem overwhelming, that’s because the stakes are high. People seeking healthcare information (which, over time, includes everyone) are vulnerable in one way or another. They’re putting their health in your hands. When at its best, healthcare advertising can connect patients with valuable information and healthcare providers who, well, care! It’s no exaggeration to say that advertising can change people’s lives for the better – if it’s done right.
That’s why it’s so important to work with a trusted partner who knows the ins and outs of healthcare advertising. You don’t want to leave a single “i” undotted or “t” uncrossed! Working with a team who know what they’re doing helps you ensure that you’re not putting any advertising dollars into campaigns that won’t be seen, or worse, could put you afoul of healthcare advertising laws.