In addition to laws barring false or deceptive advertising, West Virginia also prohibits the use of testimonials in healthcare marketing, on the theory that this advertising method is not in the public interest. It would seem that in the select states that bar testimonials, the concern is that potential patients could be mislead by or put too much stock in this method of marketing medical services. For a complete review of your marketing’s compliance with all relevant laws, make sure you have your marketing materials reviewed by legal counsel.
West Virginia Board of Medicine
W. Va. Code § 30-3-14 (c), W. Va. Code St. R. § 11-1A-3.7, and W. Va. Code St. R. § 11-1A-12.1
(c) The board may deny an application for license or other authorization to practice medicine and surgery or podiatry in this state and may discipline a physician or podiatrist licensed or otherwise lawfully practicing in this state who, after a hearing, has been adjudged by the board as unqualified due to any of the following reasons: (…)
- (3) False or deceptive advertising; (…)
- (18) Conspiring with any other person to commit an act or committing an act that would tend to coerce, intimidate or preclude another physician or podiatrist from lawfully advertising his or her services
3.7. “False or deceptive advertising” means a statement that includes a misrepresentation of fact, is likely to mislead or deceive because of a failure to disclose material facts, is intended or is likely to create false or unjustified expectations of favorable results or includes representations or implications that in reasonable probability will cause an ordinary prudent person to misunderstand or be deceived.
12.1. The Board may deny an application for a license, place a licensee on probation, suspend a license, limit or restrict a license or revoke any license heretofore or hereafter issued by the Board, upon satisfactory proof that the licensee has: (…)
- hh. Engaged in false or deceptive advertising.
- ii. Engaged in advertising that is not in the public interest. Advertising that is not in the public interest includes the following, with the exceptions specifically listed:
- A. Advertising that has the effect of intimidating or exerting undue pressure;
- B. Advertising that uses testimonials;
- C. Advertising which is false, deceptive, misleading, sensational or flamboyant;
- D. Advertising which guarantees satisfaction or a cure;
- E. Advertising which offers gratuitous services or discounts, the purpose of which is to deceive the public. This subdivision does not apply to advertising which contains an offer to negotiate fees, nor to advertising in conjunction with an established policy or program of free care for patients; and
- F. Advertising which makes claims of professional superiority which a licensee is unable to substantiate.
Sample Best Practices
We’ve developed some sample best practices to help you get started discussing your medical marketing with your legal counsel in more detail. Find out if you need to take steps to avoid the following:
- Engaging in false, deceptive, misleading, or flamboyant advertising.
- Coercing, intimidating or precluding another physician or podiatrist from lawfully advertising his or her services.
- Using testimonials.
- Guaranteeing satisfaction or a cure.
- Offering gratuitous services or discounts in order to deceive the public.
- Making claims of professional superiority that you are unable to substantiate.
- Making scientific claims that cannot be substantiated.
- Showing patient before and after photos without indicating that results vary and the results shown are not a guarantee.
- Showing models without clearly indicating that the photos are not of actual patients.
- Saying you are board-certified without including in any advertising the name of the board that has certified you.
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