Using Testimonials in Advertising

Using Testimonials in Advertising

Historically the law completely prohibited the use of testimonials in physician advertising, based on the state’s power to protect the public from misleading marketing.   In 2001, a chiropractic physician challenged the prohibition in a case that arose from the discipline of his license for the use of testimonials (Joseph Snell v. Department of Professional Regulation, et al., 318 Ill.App.3d 972). The doctor had displayed a pamphlet in his office entitled “Our Patients Speak,” containing forms entitled “My Chiropractic Story,” which were filled out by patients.

The Department fined the doctor’s license based on the Medical Practice Act’s prohibition against the use of testimonial advertising. The appellate court reversed, stating that testimonials are not inherently misleading and that the state may only ban misleading advertising. Following the case, the legislature amended the Medical Practice Act by removing the outright ban against testimonials

However, other provisions, such as the requirement for truthful information, remain. Because testimonials are no longer considered per se misleading, they may be used if they do not violate other advertising provisions of the Medical Practice Act. The law still prohibits untrue testimonials, because they mislead the public about health care.  

It is unacceptable to use sweeping statements that cannot be verified, such as, “I used Dr. Jones and he cured all of my osteoarthritis without surgery.”  Because osteoarthritis is not a condition that can be “cured” at this time, this advertisement would not pass muster. The same analysis applied to “guaranteed care” makes it clear that such guarantees are categorically improper, because it would be impossible to promise that any patient’s condition could be cured or even ameliorated.  

The law similarly prohibits claims of superiority based on the same reasoning.  However, you could use an advertisement in which a patient makes a truthful statement about the care received, for example, “I returned to my job after one week of treatment with Dr. Jones,” so long as that statement were true.  

About Author

Adrienne Hersh, JD, ICS Legal Counsel

Adrienne has worked as the Illinois Chiropractic Society's General Counsel since 2003. She represents the Society as in-house counsel and advises the organization on a wide range of legal issues affecting chiropractic physicians, including licensing laws and rules, scope of practice, insurance and reimbursement, business structuring, labor and employment, contracts and litigation. Adrienne previously served for 8 years as general counsel to the Illinois Department of Professional Regulation (now the Division of Professional Regulation, Department of Financial and Professional Regulation), where she was chief legal counsel responsible for overseeing all legal issues and advising the 50+ licensing and disciplinary boards, including the Medical Disciplinary Board and the Medical Licensing Board. She is a member of the Illinois State Bar Association Health Care Section, the Illinois Association of Healthcare Attorneys, and the National Association of Chiropractic Attorneys.

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