Revised guidelines on advertising a regulated health service came into effect on 14 December 2020, along with updates for the advertising compliance and enforcement strategy for the National Scheme. Anita Kemp and Kristin Trafford-Wiezel, Case Managers at Dental Protection, look at what these mean for dentists.

The revised guidelines on advertising have been restructured to allow practitioners easier access to information, and offer new flowcharts, case examples and content relating to testimonials, protected titles, and acceptability of the evidence required to substantiate health claims in advertising.

This article summarises the key changes and identifies what you may need to do next.

What is acceptable evidence?

AHPRA recognises the distinction between acceptable evidence for claims made in advertising and the evidence used for clinical decisions.

The consultation with a patient provides an opportunity for practitioners to obtain consent and discuss the evidence for different treatment options. Individuals are able to consider options, the benefits and risks of each option, and also ask questions, and therefore make an informed decision about their care. Advertising does not support informed decision making as the claims made are generic, and practitioners are not available to clarify whether each specific treatment is appropriate for an individual. Nor does the individual have the opportunity to ask questions, which may be critical to their understanding.

Advertisers of regulated health services must be able to substantiate claims made in advertising by means of “acceptable evidence”. Acceptable evidence mostly includes:

• Empirical data from formal research, or

• Systematic studies in the form of peer-reviewed publications.

Testimonials and reviews – what you need to know

Testimonials can be construed as misleading and are therefore prohibited as a form of advertising, as is any recommendation or positive statement relating to the clinical aspects of treatment.

Clinical aspects include:

• Symptoms – specific symptom or reason for seeking treatment

• Diagnosis or treatment – specific diagnosis or treatment provided by the practitioner

• Outcome – specific outcome, or skills or experience of the practitioner (either directly or via comparison).

Broadly, practitioners are not responsible for positive or negative reviews on third party websites as they have no control over this content. Nevertheless, practitioners should be wary if they choose to engage with reviews as this may be considered advertising.

Practitioners are, however, expected to monitor platforms that they have control of (eg social media and practice websites) and comply with the prohibition of the use of testimonials in advertising, to ensure full compliance with the guidance.

Protected titles – registration, competence and qualifications

To avoid misleading advertising practitioners should consider how they present their title, qualifications and areas of expertise. 

Advertising that uses the words (or variations of) “specialises in”, “speciality” or “specialised” implies the practitioner holds specialist registration. Alternative descriptions should be utilised. Wording such as “substantial experience in” or “working primarily in” are less likely to be misleading and therefore can be considered.

Advertising compliance for the National Scheme

The updated advertising compliance and enforcement strategy for the National Scheme sets out a proactive approach to advertising compliance, while encompassing a risk-based approach that determines the severity of a breach and the appropriate penalty should this occur. 

Other updates include:

• Recognition that false and misleading claims about public health emergencies such as COVID-19 may be identified as high risk (critical or major)

• Additional education and engagement activities to support advertising compliance

• An indication of AHPRA’s focus on testimonial compliance and enforcement action, specifically those that present greater risk.

Perhaps most noteworthy was the addition of section (f), which has overarching implications for all registered health practitioners:

“Declaration about advertising obligation and audit addition. At annual renewal of registration practitioners will be asked to declare that their advertising meets National Law advertising requirements. Future audits will be conducted to check practitioner advertising compliance against this declaration.”

Reviewing your own approach

As we move into a new year, now may be the perfect time to review your current advertising compliance alongside the new requirements and guidelines. 

For further resources, information and guidance regarding practitioner obligations and compliance requirements, visit AHPRA’s advertising hub.