A helpful history of practice marketing, and what the future holds

A brief overview of the history of practice marketing might be useful in the wild marketing frontier now facing us. In the early 1980s, I was hired as one of the first marketing managers in organized dentistry. The issue of who should regulate advertising was a big deal. It included concerns as specific as how large a doctor’s sign could be or what an orthodontist could include on his or her “shingle.”

Currently, advertising for the professions is controlled, not so much by the professional associations or the professionals themselves, but by federal, state, and local government bodies. As an example, for many years the California Dental Association (CDA) issued the “Guidelines on Advertising.” Then the Federal Trade Commission (FTC) successfully sued the CDA over these guidelines. It was ultimately decided that the FTC held jurisdiction over regulating professional practice advertising.¹ This case set the tone for increased guidance by government agencies over the professions and their advertising rules of conduct.

This matter was originally forced into the courts because the professional organizations tried to restrict advertising in the modern era. Various bar associations argued that advertising legal services would diminish the profession and provide false and misleading messages to potential clients. Because laypeople could not understand the technicalities of the professional work, it was thought that a robust advertising campaign would give an advantage to unethical providers. They also reasoned that if one lawyer were allowed to advertise, every lawyer would eventually be forced into the world of advertising. Various associations of the “learned professions” offered amicus briefs supporting arguments made by bar associations.

The matter of advertising was resolved in the courts by the Bates v. State Bar of Arizona case.² The case involved two Arizona lawyers who placed an advertisement that read, “Do you need a lawyer?’’ and continued, ‘‘Legal services at very reasonable fees.’’ The Arizona Supreme Court upheld the state bar in determining that this was a violation of the state rule of professional conduct. However, the Unites States Supreme Court decided to overturn that ruling in 1977, saying that the protection for commercial speech applied to advertising by lawyers and that the Arizona rule was unconstitutionally broad. This became the governing principle and law regarding advertising by professions, including dentistry, from then on.

The CDA v. FTC case was an example of attempts by professional practice associations to retain control over business aspects of their industries, including practice promotion. In many cases, associations have lost control of the regulation of the business side of practice. But just because professionals could advertise was not a deciding factor on whether they should advertise.

The state licensing boards became the middle ground between the state and national associations and the FTC. Even though associations are relegated to a back seat in enforcing advertising rules of conduct, they still retain the power of licensure. In this capacity, every health-care and legal licensing board has retained a guideline that goes beyond the FTC advertising requirements.

As an example, the Texas State Board of Dental Examiners lists Title 3 language that reads that the Practice Act “does not prohibit advertising, unless the advertising is (1) false, misleading, or deceptive, or (2) not readily subject to verification, if the advertising claims professional superiority or the performance of a professional service in a superior manner.”

This is often referred to as the “prohibition on claiming superiority of service.” It stops any professionals from claiming that their services are better than any other professionals’. In terms of an advertising message, this is significant in restricting what professionals can advertise, and by extension, what they can put on websites and signage. The reason for this comes back to an understanding of “power differentials and asymmetry of knowledge.”

In short, only a professional has sufficient background to judge another professional. Without a background in the fundamentals of the profession, consumers are inherently ignorant of the variables that will indicate whether their health-care professional or lawyer is acting according to the minimum standards of practice. To illustrate, even a great lawyer can lose a case and even a poor lawyer can win one. This does not mean that the client has a “good lawyer” or a “bad lawyer.” Most clients simply will not be able to tell. This applies to dentistry as well.

While the learned professions have been arguing regarding the ethics of professional practice advertising, cultural imperatives also appear to have entered the debate. As an example, people in some countries consider advertising among professional practices to be entirely inappropriate. They argue that a provider might financially benefit from it.³ In the United States, the presumption that doctors should be allowed to profit from attracting more patients is taken as a positive reward for quality service and part of economic freedom.

The American system as a whole takes a much more liberal view toward professional entrepreneurism.⁴ This sets the stage for professional practices to become more like other private small businesses. The same positive attitude regarding professional practice entrepreneurism seems to exist in eastern Europe, according to research done in Romania.⁵ This is not shared in Great Britain.⁶

Although the National Health Service acknowledges that advertising can be a way of increasing information to the consumer and therefore can stimulate competition that can be perceived as a social benefit, it sees private practice advertising in a much more negative light. All of this demonstrates that attitudes are quite varied toward professional practice advertising.

I believe that the dental profession may be due for a shake-up in advertising. Some claims by individual practitioners are moving into more questionable territory, particularly claims of expertise that those who make the claim may not be able to support. An example is general dentists who claim on their websites to offer a full range of pedodontic services when they are not, in fact, limiting their services to pediatric dentistry. Others claim to be “dental implant specialists,” when no such specialty has been recognized by the American Dental Association. Not only can these statements confuse consumers, they also might put the practitioners in danger of making false claims of offering a standard of care that is not justifiable. There is the added danger of having regulatory bodies such as the FTC “move the goalpost” on short notice on our behalf.

References

1. California Dental Association v. Federal Trade Commission. Casebriefs website. http://www.casebriefs.com/blog/law/health-law/health-law-keyed-to-furrow/antitrust/california-dental-association-v-federal-trade-commission/. Published 1999. Accessed May 23, 2017.

2. Bates v. State Bar of Arizona. Cornell Law website. https://www.law.cornell.edu/supremecourt/text/433/350. Accessed May 23, 2017.

3. Dable RA, Musani SI, Wasik PB, Nagmode SL, Paware BR. Is advertising by dental professionals having a negative impact on consumers? The perspective of Indian consumers. Health Mark Q. 2014; 31(2):136-149.

4. Becker BW, Kaldenberg DO. Advertising by professionals: Causes and consequences. J Curr Issues Res Advertising. 1998; 20(2):51.

5. Geangu I. Ethical and legal aspects of marketing activity in the field of dental healthcare services. Contemp. Read Law Soc Just. 2013;5(2): 904-918.

6. Charles C. Advertising by medical professionals: A healthy outlook. Int J Advertising. 1989; 8: 61-70.

Scott McDonald is owner and president of Doctor Demographics LLC, a firm that has specialized in marketing analysis services and research for practices for over 30 years. He also runs Scott McDonald & Associates Inc., the speaking and consulting arm of Doctor Demographics, and he provides the Perfect Place to Put a Practice podcast on iTunes.