CAMLAW: Complementary and Alternative Medicine Law Blog : Complementary, Alternative, & Integrative Medicine Law, Regulation, Ethics & Policy (Alternative and Complementary Medicine, Medical Spa Information, Holistic Health Attorney, and Legal Resources)

According to the FTC Guide, a representation, omission or practice in any medium (including the Internet) is deceptive if it is likely to: "mislead consumers and affect consumers' behavior or decisions about the product or service." In addition, an act or practice is unfair "if the injury it causes, or is likely to cause, is: substantial, not outweighed by other benefits, and not reasonably avoidable."

The botton line: "advertising must tell the truth and not mislead consumers." The Guide goes on to clarify with examples. For instance, a claim "can be misleading if relevant information is left out or if the claim implies something that's not true." In addition, the FTC Guide notes, "claims must be substantiated, especially when they concern health, safety, or performance. The type of evidence may depend on the product, the claims, and what experts believe necessary." Consult the Guide for details. One important point the FTC makes is that "disclaimers and disclosures must be clear and conspicuous." The Guide offers more detail on what kinds of circumstances will require disclaimers and disclosures, and what is meant by "clear and conspicuous."

While decisions about on-line promotion require careful legal and business judgment calls, common sense goes a long way.

The FTC website is rich with guidance, including such on-line circulars as its Guide Concerning Use of the Word 'Free' and Similar Representations. For sellers of goods, I like to point out the FTC's on-line guide, Selling on the Internet: Prompt Delivery Rules.

Those selling dietary supplements on-line also should review and follow the FTC's on-line guidance about promotion of supplements, and familiarize themselves generally with legal rules governing on-line sale of dietary supplements.

A variety of state laws also may apply to advertising on the Web, not the least of which are state laws against deceptive and unfair business practices, as well as against fraud. Provisions may parallel or diverge from the FTC standards.

My colleague Alan Dumoff, JD and I have just published an article setting out legal concerns relating to on-line activities of health care providers and organizations (Dumoff A, Cohen MH. Advising from a distance: the legality of web-based clinical consultations--Part I. Alt. & Comp. Therapies. Aug. 2004;231-34). While not all activities may constitute advertising, issues of unlicensed medical practice, professional discipline, malpractice, informed consent, scope of practice, HIPPA privacy requirements, and corporate practice of medicine, also can arise.

Certain professions, such as lawyers, have their own ethical rules governing advertising, including on-line. A good resource for lawyer advertising is the American Bar Association's website containing links to state ethics rules governing lawyer advertising, solicitation, and marketing. The ABA website has links to relevant laws and rules in each state, including statutes relating to advertising in general. For example, standard 2 of rule 1-400(E) the Board of Governors of the California State Bar states: "A 'communication' which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as 'this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.'" Similar language, taken from the model rules, can be found in other state rules.

Yet another area to beware is the new federal anti-spam law, which can become a trap for the unwary who rely on e-mail for promotion.

Internet promotion is not insurmountable; indeed, it is critical to business success, so long as the Scylla and Charybdis of relevant federal and state rules can be successfully navigated.