SECTION 164.3. Misleading or Deceptive Advertising  


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  • No physician shall disseminate or cause the dissemination of any advertisement that is in any way false, deceptive, or misleading. Any advertisement shall be deemed by the board to be false, deceptive, or misleading if it:

    (1) contains material false claims or misrepresentations of material facts which cannot be substantiated;

    (2) contains material implied false claims or implied misrepresentations of material fact;

    (3) omits material facts;

    (4) makes a representation likely to create an unjustified expectation about the results of a health care service or procedure;

    (5) advertises or assures a permanent cure for an incurable disease;

    (6) compares a health care professional's services with another health care professional's services unless the comparison can be factually substantiated;

    (7) advertises professional superiority or the performance of professional service in a superior manner if the advertising is not subject to verification;

    (8) contains a testimonial that includes false, deceptive, or misleading statements, or fails to include disclaimers or warnings as to the credentials of the person making the testimonial;

    (9) includes photographs or other representations of models or actors without explicitly identifying them as models and not actual patients;

    (10) causes confusion or misunderstanding as to the credentials, education, or licensure of a health care professional;

    (11) represents that health care insurance deductibles or copayments may be waived or are not applicable to health care services to be provided if the deductibles or copayments are required;

    (12) represents that the benefits of a health benefit plan will be accepted as full payment when deductibles or copayments are required;

    (13) states that a service is free when it is not, or contains untruthful or deceptive claims regarding costs and fees. If other costs are frequently incurred when the advertised service is obtained then this should be disclosed. Offers of free service must indeed be free. To state that a service is free but a third party is billed is deceptive and subject to disciplinary action;

    (14) makes a representation that is designed to take advantage of the fears or emotions of a particularly susceptible type of patient;

    (15) advertises or represents in the use of a professional name, a title or professional identification that is expressly or commonly reserved to or used by another profession or professional;

    (16) claims that a physician has a unique or exclusive skill without substantiation of such claim;

    (17) involves uninvited solicitation such as "drumming" patients or conduct considered an offense under Texas Occupations Code §102.001(a) relating to the solicitation of patients; or

    (18) fails 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, article, or infomercial, unless the nature, format or medium of such advertisement makes the fact of compensation apparent.

Source Note: The provisions of this §164.3 adopted to be effective May 21, 2000, 25 TexReg 4348; amended to be effective September 19, 2002, 27 TexReg 8769; amended to be effective May 12, 2008, 33 TexReg 3741