Fake or Real: Before and After Pictures Are Regulated

October 2, 2023

Real!

Before and after pictures are an important marketing tool for medical providers, particularly in the elective medicine industries. However, as we frequently tell clients, health care is highly regulated so it isn’t surprising that the use of before and after pictures is regulated. In this article, we will examine the legal and compliance considerations that providers should be aware of when using before and after pictures.

Medical Advertising

The use of social media has had a significant impact on the aesthetic industry. Platforms like Instagram, TikTok, and Snapchat have become powerful tools offering an unprecedented level of exposure to before and after pictures. While these images can serve as valuable educational resources, they also wield significant influence, potentially distorting perceptions and fueling unrealistic expectations. Whereas patients used to come in with unaltered photos of their younger selves or of celebrities, they now arrive with photoshopped pictures and therefore unrealistic expectations to see those results. Social media also has the potential to desensitize people to the recovery times for and practical effects of the procedures themselves. Additionally, it overlooks the reality of potential complications. While complications only occur in less than 1% of all plastic surgery cases, they do occur. All of this underscores the motivation behind medical advertising regulations and their focus to ensure truth in advertising by medical professionals.

What is the Regulation Landscape?

The regulation of medical advertising is complex and multifaceted with oversight at both the federal and state level. This is not to mention ethical rules of professional societies and organizations that may come into play.

At the federal level, the Federal Trade Commission (FTC) is responsible for regulating all advertising in the United States, including medical advertising. Moving to the state level, states have their own laws regulating medical advertising while at the same time state licensing boards also regulate advertising promoted by their licensees. Despite the presence of the various federal and state regulations, all have a common theme–advertisements must not be deceptive, misleading, or false. For example, the FTC’s broad mandate is to prevent “unfair or deceptive acts or practices,” meaning all advertising must be truthful and not misleading. State laws are similar in their mandate. As an example of a state licensing board’s rule, the Texas Medical Board provides that “[n]o physician shall disseminate or cause the dissemination of any advertisement that is in any way false, deceptive, or misleading.” 

All parties who participate directly in marketing and promotion, or who have authority to control those practices, have an obligation to make sure that claims are presented truthfully and to ensure the adequacy of the support for those claims. Not only does the FTC have a policy regarding substantiation but licensing board investigations centering on potentially misleading advertising will request documentation or information to support the statements at issue.

How Does This Relate to Before and After Pictures?

The requirement that advertisements not be false, deceptive, or misleading extends to before-and-after pictures in that providers cannot edit, Photoshop, or alter photos in any way.  These acts create a message that the displayed result was actually achieved when it fact it wasn’t. Even staging before and after photos with dissimilar lighting or angles can be problematic as it can create a misleading expectation of real results. Another common issue is the use by one provider of another provider’s or practice’s photos. For example, if a physician uses before and after pictures from a procedure performed by another physician but claims or implies that they performed the procedure or that they could produce those results without a disclaimer that someone else performed the procedure, an issue arises.

Other Potential Issues

Outside of medical advertising, the use of before-and-after pictures raises other potential issues that must be considered.

In addition to the FTC’s regulations, providers must obtain patient consent before using their before and after pictures in advertising as patients have a right to control the use of their images. More importantly in health care, before-and-after photos are also regulated under the Health Insurance Portability and Accountability Act (HIPAA). HIPAA requires that providers and medical facilities keep the patient’s personal identifying information, or protected health information (PHI), private and secure. Before-and-after photos are considered PHI because they could be used to identify someone and therefore cannot be used for marketing purposes without written authorization from the patient. The authorization must specifically detail how the photos will be used, provide a time frame for the authorization, and be signed by the patient.

From an employment perspective there is also a frequently asked question of who owns the before and after photos if a provider is posting on their personal social media account in addition to or in lieu of the practice’s account. Dealing with this on the front end of the relationship is key but also securing the necessary patient consents and authorization is required.

A couple of provider considerations when using before and after photos includes ensuring they do not violate the policies of social media platforms, such as policies against posting nudity, and being aware of the potential impact they may have on patient mental health. Providers may need to take steps to manage patient expectations and promote realistic outcomes, as well as provide resources and support for patients who may experience anxiety or other mental health issues related to the results of their procedure.

ByrdAdatto Can Help Navigate Medical Advertising Regulations

While before and after pictures can be a powerful marketing tool, they also come with important legal and compliance considerations. Failure to adhere can result in legal and disciplinary action. At ByrdAdatto, we are working hard to ensure our clients are able to navigate the complex regulations on medical advertising. If you have further questions about the use of before and after pictures, contact ByrdAdatto at info@byrdadatto.com.

ByrdAdatto attorney Jay Reyero

Jay D. Reyero

Jay has mastered the art of communication, leaving clients with both an understanding of their business risk and the path to solution.

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