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HomemibusinessDigital Marketing: Navigating the Legal and Ethical Minefields

Digital Marketing: Navigating the Legal and Ethical Minefields

Effective digital marketing is an integral component of practice success, but it can be something of a minefield when it comes to both ethical and legal requirements. Both the Australian Health Practitioner Regulation Agency (AHPRA) and Optometry Board of Australia (OBA) have guidelines for how and what a practice can advertise. The Therapeutic Goods Administration (TGA) also has legislation governing the communication of medications and therapeutic devices. 1stGroup marketing director Will William, though not a lawyer, outlines his interpretation of the current legislation and suggests tactics to help you navigate the world of digital marketing.

At the core, any digital marketing plan an optometry practice enters into must adhere to some basic guidelines as outlined by the OBA and AHPRA. These guidelines are as follows:

  • An advertisement must not be, in any way, false, misleading or deceptive.
  • Advertisements may not offer gifts, discounts or other forms of inducement unless the terms and conditions of the offer are clearly stated.
  • No advertisement may use testimonials about the service being offered or the business itself.
  • Advertisements should not create unreasonable expectations of benefit.
  • Advertisements should not, either directly or indirectly, encourage the unnecessary or indiscriminate use of the advertised regulated health service, medication or therapeutic good.

Penalties for breaching advertising can be steep, with individuals (registered practitioners) facing fines of up to AU$5,000 per offence, and up to $10,000 per offence for a body corporate. The penalties are even more severe if the breach involves the unlawful use of a protected title (such as an optometrist who refers to themselves as a specialist). In these cases, an individual can face penalties up to a maximum of $60,000 ($30,000 in WA), three years imprisonment or both. Corporate bodies can face a fine of up to $120,000 per offence ($60,000 in WA).

For marketing that involves therapeutic goods or medication, such as disposable contact lenses, eye-drops or blue light glasses, the Therapeutic Goods Administration has a number of additional guidelines for advertising that must be followed:

  • Products or goods being advertised either need to be approved by the TGA, or be included in the Australian Register of Therapeutic Goods (ARTG).
  • If the product is included in the ARTG, the advertising must not imply approval or endorsement by the TGA or other government bodies (both local and international), and the listing/registration number must be provided.

As with AHPRA, the TGA mandates that marketing must not, in any way, be false, misleading or deceptive, and endorsements and testimonials are for the most part not allowed. There are some instances in which endorsements from representatives of the company producing the good or product may be used, so long as the name of the company, the nature or type of commercial agreement involved in the endorsement, and any financial or in kind benefits that the company or individual offering the endorsement may have received are disclosed, but avoiding endorsements is a safer option all round.

Other guidelines include not targeting marketing towards children aged 12 and under; that with few exceptions (none of which are applicable to optometry) product samples may not be offered, that safe and proper use of a product or medication must be supported in the advertising, and that any scientific or clinical terminology must be explained in a way that is clearly understood by consumers.

PLATFORM GUIDELINES

On top of the rules laid out by official national boards, the platforms upon which digital advertising hinges – Google, Facebook and other social media channels – all have their own guidelines concerning what can be marketed, how it can be marketed and who can be targeted.

One of the major rules imposed by Facebook, and the one that is most likely to impact optometry practices, is that the platform does not allow language that implies attribution of a condition or personal attribute, such as a vision problem or being ‘tired’ of having to rely on something to help with their vision issues. In practice, what this essentially means is that marketing can’t directly ask questions of the target. For Facebook, asking “Do you need a new pair of glasses?” implies that the target of the advertisement has a problem with their eyes.

While it is possible to ask questions in Facebook advertisements if they don’t directly involve a condition or treatment, making a declarative statement, such as “Treat yourself to a new pair of glasses”, can be a more effective way to get the message across without falling afoul of Facebook moderators.

Take, for example, these two ads for Ortho-K.

REJECTED: Tired of using glasses or contact lenses? Try Ortho-k contact lenses! Wear them while you sleep so you can forget about glasses during the day!

ACCEPTED: Correct your vision while you sleep with Ortho-K! This revolutionary technology uses overnight corrective lenses, a new method that can help to end reliance on contact lenses or glasses!

Book a consultation today!

The rejected example attributes glasses or contact lenses to the person reading the advertisement, as well as them being tired of having to use them. The accepted ad instead only makes statements about Ortho-K concerning how the therapy is used and what it is intended to do with no personal attribution at all.

When creating ads such as this it’s also important, from a legal standpoint, to avoid terminology that implies guaranteed success of an unreasonable expectation or benefit. Simple statements about the intent or purpose of a treatment or product should illustrate purpose and avoid crossing the line.

While all of this may come across as rather confusing, terrifying or potentially financially devastating, it doesn’t have to be. Although they may seem rather complex, the guidelines imposed by official bodies as well as different platforms are, for the most part, easy to follow.

Some of the guidelines, such as those covering misleading or deceptive material, fostering unreasonable expectations or encouraging the unnecessary use of a therapeutic product or service may be open to some interpretation depending on who is viewing the advertisement. It’s hard to anticipate what someone may find inadvertently misleading (either through a misreading of the text or through ambiguity), so with any marketing campaign it’s worthwhile having a number of people read the advertisement before it goes live. They may notice something you didn’t, or see something in it that may be problematic.

The most widely used ad type for both Instagram and Facebook advertising is the ‘Single Image Ad’. This ad type consists of an image, ad copy, and a call-to-action button. What may be shown in an image is as highly moderated as text. Before and after images may not be used in Facebook advertising. As an example, an optometry practice would not be able to use contrasting images of someone wearing glasses and that same person without glasses to advertise a corrective technique such as orthokeratology.

Similarly, an ad image must not imply or attempt to create a negative self-image in order to sell a product or service. While this rule impacts the diet, weight loss and cosmetics industry more than it does eye care, it may still affect the kind of ads that can be approved. An ad promoting laser surgery, orthokeratology, contact lenses or even new fashion frames using an image of someone looking sad while wearing glasses would most likely be rejected for fostering negative self-image.

From both a legal and ethical standard, advertising to children is strictly prohibited. This means that advertising products or treatments intended for children (such as back to school eye exams) must be targeted to the parents rather than the children. This is easily done in Google Ads by targeting keywords around back to school and eye exams, but on Facebook the rules of attribution must be followed.

Facebook allows for very focussed targeting of parents down to the age range of their children, but when composing an advertisement you again have to avoid attributing a condition to the target, and in this case, the condition is having children. As such, any copy in the advertising must stick to declarative statements, such as, “Vision problems can severely impact a child’s school performance”, rather than a asking a question like “does your child have problems seeing the whiteboard?”.

KEEP IT SIMPLE

One of the easiest ways to avoid falling foul of advertising legalities, platform rules and ethical hurdles is to keep your ad copy short. The fewer words you use, the less likely you are to make mistakes. This is easy in Google, as you have a very limited number of characters you can use per ad, but Facebook is a different story as you can have posts as long as you want. In 2018, AdEspresso, an ad management platform, performed an experiment focussing on optimal length of Facebook ads.

The test worked with a budget of $1,000 and with text lengths ranging from a single line up to six paragraphs. After two weeks of testing, with each ad spending $142.90 (+/- $0.10), the best performing ad in cost per click proved to be one paragraph. Ad performance and optimal word count will obviously change from campaign to campaign, as well as the product or service being advertised and the ad target, but so long as you follow the rules laid down by official boards, platforms and ethical standards, a paragraph is an ideal length for most ads.

This article outlines Will William’s interpretation of laws and regulations of healthcare advertising and, as such, should in no way be considered legal advice. You should seek advice from your own legal counsel if you have any questions regarding national laws. 

Will Williams is the marketing director of 1stGroup, parent company of MyHealth1st. MyHealth1st is dedicated to providing practices and practitioners with the tools and technology to help grow your practice and deliver healthcare to those in need across Australia. In addition to online appointments, MyHealth1st offers best in class managed digital marketing that abides by all of the regulatory and ethical requirements of official boards and digital platforms.

To find out more, visit www.myhealth1st. com.au/mivision or call: (AUS) 1300 266 517 

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