Considerations When Promoting Your Practice Through a Social Media Influencer 

The MICA Risk Team recently spoke with a MICA member who used influencer marketing. Specifically, the member paid an influencer to post on social media regarding her experience at the member’s practice. The MICA Risk Team identified the risks this arrangement created for the practice by considering applicable laws and ethical requirements. 

An influencer is a social media personality with a large online presence who promotes products or services to their followers on social media platforms. An arrangement in which a business partners with an influencer to market the business’s products or services is known as “influencer marketing.”  

This article highlights some of the legal and ethical considerations for medical practices that use influencer marketing, including the impact of Federal Trade Commission (FTC) advertising regulations, Arizona laws, and American Medical Association (AMA) ethical guidelines. This article also discusses considerations for practices using influencer marketing who participate in federal health care programs like Medicare. 

The FTC Requires Truthfulness, Evidence, and Disclosure 

The FTC has had its eye on physicians. Last year, the agency supported physicians by voting to ban noncompete agreements. However, the agency has recently targeted bogus statements about dietary supplements and is considering action against physicians and other prescribers of gender transition drugs.  

The FTC Act gives the FTC authority to regulate advertising, including advertising in the health care industry and advertising by physicians. Among other requirements, the FTC requires that advertising is truthful and not deceptive, and advertisers must have evidence to support their advertising claims.  

The FTC published an “Endorsement Guide” specifically applying these requirements to endorsers and influencers. The Endorsement Guide states, “An endorsement must reflect the honest opinion of the endorser and can’t be used to make a claim the marketer of the product couldn’t legally make.” 

The Endorsement Guide also requires that “if there’s a connection between an endorser and the marketer that a significant minority of consumers wouldn’t expect and it would affect how they evaluate the endorsement, that connection should be disclosed clearly and conspicuously.” 

One of the influencer’s social media posts stated that the practice’s physicians are the “best and most experienced” in Phoenix. For the following reasons, the influencer’s post describing the practice’s physicians as the “best and most experienced” likely does not satisfy these FTC guidelines, and the practice might risk action by the FTC. 

• • First, the practice had no evidence to support the claim that its physicians are the best and most experienced. The Endorsement Guide prohibits a business from using an endorser to make a claim that the business could not make itself. Without evidence to support the best-and-most-experienced claim, the FTC might consider this claim deceptive.  

To better align with this FTC requirement, the practice should ask the influencer to avoid generalized statements that are difficult—if not impossible—to support. Instead, the influencer’s post should clearly indicate that the claim only reflects her personal opinion. The practice could also ask the influencer to instead share how long its physicians have been practicing and the specialties in which they are board certified.  

• • Second, the post does not disclose the connection between the influencer and the practice. Most consumers would not know the influencer’s statements are the result of a paid advertisement, and this information might affect how consumers evaluate the endorsement. The Endorsement Guide therefore requires clear and conspicuous disclosure of the connection between the practice and the influencer.  

To better align with this FTC requirement, the practice could require the influencer to disclose in the post itself that the post is a paid advertisement. The disclosure should be clearly visible, it should not be hidden on a webpage separate from the actual post, and it should be easily understood. 

Arizona Law Prohibits Deceptive and Misleading Advertising 

Arizona’s Medical Practice Act provides the grounds for disciplinary action against allopathic physicians by the Arizona Medical Board, including defining what constitutes “unprofessional conduct”.¹ Arizona’s Medical Practice Act states that “unprofessional conduct” includes “[c]ommitting false, fraudulent, deceptive or misleading advertising by a doctor of medicine or the doctor of medicine’s staff, employer or representative.”²  Arizona’s Medical Practice Act does not define “false,” “fraudulent,” “deceptive,” or “misleading.”  

Nevertheless, the Arizona Medical Board might find the influencer’s best-and-most-experienced claim to be deceptive or misleading, because the practice has no evidence to support this claim. Because the practice partnered with the influencer, the Arizona Medical Board might consider the influencer to be the practice’s representative. The Arizona Medical Board might view the influencer’s post as unprofessional conduct under Arizona’s Medical Practice Act, and the practice’s physicians might be subject to disciplinary action as a result. 

Similarly, the Arizona Consumer Fraud Act seeks to protect consumers from deceptive business practices and advertising. In support of this goal, the Consumer Fraud Act prohibits the act or use of any “deception, deceptive or unfair act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely on such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise…”³ 

The Consumer Fraud Act defines “merchandise” as “any objects, wares, goods, commodities, intangibles, real estate or services.” The influencer’s post advertises the physicians’ services, which are “merchandise” as defined in the Consumer Fraud Act and must therefore meet the Consumer Fraud Act’s requirements. The influencer’s post might be considered deceptive or a misrepresentation under the Consumer Fraud Act, because no evidence exists to support the claim that the practice’s physicians are the best and most experienced.  

To more closely align with the requirements of the Arizona Medical Practice Act and the Arizona Consumer Fraud Act, the practice should require the influencer to limit her posts to statements with factual support. As discussed above, for example, the influencer could instead state how long the physicians have practiced medicine and what board certifications they possess. The practice could also require the influencer to clearly disclose that her posts represent her own opinions.  

Last, Arizona law also requires that an “advertisement for health care services that includes a health professional’s name shall identify the title and type of license the health professional holds and under which the health professional is practicing.”  Although the influencer’s post in this situation did not specifically name any health care professionals in the practice, practices in Arizona should be aware of this requirement. 

The AMA Requires Factual Support  

The practice should also consider the ethical requirements of any professional organizations to which its physicians belong. For example, the AMA Code of Medical Ethics specifically addresses physician advertising and publicity.  

The AMA states, “There are no restrictions on advertising by physicians except those that can be specifically justified to protect the public from deceptive practices.” The AMA requires that statements regarding the quality of a physician’s services must be factually supportable.  

The influencer’s post pertains to the quality of the physicians’ services and implicates this portion of the AMA Code of Medical Ethics. To better align with the AMA’s ethical requirements, as suggested above, the practice should require the influencer to limit her post to a factual statement, such as how long the physicians have practiced.  

HIPAA Considerations 

By describing the practice’s physicians as the “best and most experienced,” the influencer’s post voluntarily disclosed that she was a patient of the practice. However, covered entities—which include medical practices—should only post statements that identify patients after obtaining the patient’s authorization. 

With very limited exceptions, the HIPAA Privacy Rule requires covered entities to obtain an authorization for the use or disclosure of protected health information (PHI) for marketing. In general, practices should ensure that any information shared with influencers does not include PHI. Practices should also obtain a HIPAA authorization from any influencer they partner with, because an influencer’s endorsement on social media will likely disclose that the influencer is a patient of the practice who hired them. 

Anti-Kickback Statute Considerations 

Practices participating in federal health care programs should also consider the requirements and prohibitions of the Anti-Kickback Statute. In general, the Anti-Kickback Statute prohibits paying for referrals that result in payment by a federal health care program. The Anti-Kickback Statute includes “safe harbors” that permit certain financial relationships between referring individuals and entities. However, the determination of whether a safe harbor exception applies must be made on a case-by-case basis. Practices should consult with a health law attorney who can provide guidance specific to the practice’s circumstances. 

Final Recommendations 

Overall, practices should ensure that all advertising is free from information that might be considered false, deceptive, or misleading. Endorsements on social media should clearly disclose the relationship between the influencer and the practice. All advertising communications should only include statements for which the practice has evidentiary support. Practices should obtain a HIPAA authorization from influencers and ensure that no PHI is disclosed without patient consent. Last, practices participating in federal health care programs should consider Anti-Kickback Statute requirements. 

For more information regarding the ethical and legal requirements for medical professional marketing and advertising, practices can visit the following resources. 

• Federal Trade Commission: Advertising and Marketing Basics 

• U.S. Department of Health and Human Services: The HIPAA Privacy Rule and Marketing 

• U.S. Department of Health and Human Services: HIPAA Marketing FAQ 
• U.S. Department of Health and Human Services Office of Inspector General: Fraud & Abuse Laws 

 

^{[1] For osteopathic physicians in Arizona, “unprofessional conduct” includes advertising “in a false, deceptive or misleading manner.”} 

^{[2] Utah’s definition of “unprofessional conduct” includes violating the AMA Code of Medical Ethics. Nevada’s definition of “unprofessional conduct” includes engaging in any conduct intended to deceive. Montana’s definition of “unprofessional conduct” includes a misleading, deceptive, false, or fraudulent advertisement.}

^{[3] States have different but often similar approaches to regulating deceptive business practices, including advertising. For example, Utah considers the act of representing that goods or services have characteristics or qualities they do not have to be a deceptive trade practice. Nevada prohibits any statement known to be false, deceptive, or misleading that is designed to induce someone to purchase or utilize professional services. Montana prohibits deceptive acts or practices in the conduct of any trade or commerce.}