California Legislature—2013–14 Regular Session

Assembly Bill No. 916

Introduced by Assembly Member Eggman

February 22, 2013

An act to amend Section 651 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

AB 916, as introduced, Eggman. Healing arts: false or misleading advertising.

Existing law provides for the licensure and regulation of the practice of various healing arts practitioners by boards within the Department of Consumer Affairs. Existing law makes it unlawful for those practitioners to disseminate a false, fraudulent, misleading, or deceptive statement and defines those terms for its purposes. Existing law prohibits a physician and surgeon from making a statement in public communications that he or she is board certified unless that board meets certain requirements.

This bill would further prohibit the use of additional terms by a physician or surgeon with respect to board of certification, except as provided. The bill would also make findings and declarations regarding the need for legislation pertaining to misleading advertisements and statements by physicians and surgeons.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Existing law prohibits a physician and surgeon from
advertising in public communications that he or she is board
certified unless that board is a member of the American Board of
Medical Specialties, a board or association with equivalent
requirements approved by the Medical Board of California, or a
board or association with an Accreditation Council for Graduate
Medical Education-approved postgraduate training program that
provides complete training in that specialty or subspecialty.

(b) The intent of these laws is to protect the public from being
misled or endangered as a result of false or misleading
advertisements by practitioners who claim board certification by
boards not meeting the above requirements, and to enhance the
quality of care and safety afforded to patients.

(c) Unfortunately, these laws have been widely circumvented
by the dissemination of public communications by physicians and
surgeons, or on their behalf by boards that do not meet the above
requirements, that do not include the exact phrase “board certified”
but contain similar terms that strongly imply board certification.

(d) Further clarification of existing law is needed to further
protect the public and to ensure that patients better understand the
training and qualifications possessed by physicians and surgeons
from whom they are seeking care.

SEC. 2.  

Section 651 of the Business and Professions Code is
amended to read:

651.  

(a) It is unlawful for any person licensed under this
division or under any initiative act referred to in this division to
disseminate or cause to be disseminated any form of public
communication containing a false, fraudulent, misleading, or
deceptive statement, claim, or image for the purpose of or likely
to induce, directly or indirectly, the rendering of professional
services or furnishing of products in connection with the
professional practice or business for which he or she is licensed.
A “public communication” as used in this section includes, but is
not limited to, communication by means of mail, television, radio,
motion picture, newspaper, book, list or directory of healing arts
practitioners, Internet, or other electronic communication.

(b) A false, fraudulent, misleading, or deceptive statement,
claim, or image includes a statement or claim that does any of the
following:

(1) Contains a misrepresentation of fact.

(2) Is likely to mislead or deceive because of a failure to disclose
material facts.

(3) (A) Is intended or is likely to create false or unjustified
expectations of favorable results, including the use of any
photograph or other image that does not accurately depict the
results of the procedure being advertised or that has been altered
in any manner from the image of the actual subject depicted in the
photograph or image.

(B) Use of any photograph or other image of a model without
clearly stating in a prominent location in easily readable type the
fact that the photograph or image is of a model is a violation of
subdivision (a). For purposes of this paragraph, a model is anyone
other than an actual patient, who has undergone the procedure
being advertised, of the licensee who is advertising for his or her
services.

(C) Use of any photograph or other image of an actual patient
that depicts or purports to depict the results of any procedure, or
presents “before” and “after” views of a patient, without specifying
in a prominent location in easily readable type size what procedures
were performed on that patient is a violation of subdivision (a).
Any “before” and “after” views (i) shall be comparable in
presentation so that the results are not distorted by favorable poses,
lighting, or other features of presentation, and (ii) shall contain a
statement that the same “before” and “after” results may not occur
for all patients.

(4) Relates to fees, other than a standard consultation fee or a
range of fees for specific types of services, without fully and
specifically disclosing all variables and other material factors.

(5) Contains other representations or implications that in
reasonable probability will cause an ordinarily prudent person to
misunderstand or be deceived.

(6) Makes a claim either of professional superiority or of
performing services in a superior manner, unless that claim is
relevant to the service being performed and can be substantiated
with objective scientific evidence.

(7) Makes a scientific claim that cannot be substantiated by
reliable, peer reviewed, published scientific studies.

(8) Includes any statement, endorsement, or testimonial that is
likely to mislead or deceive because of a failure to disclose material
facts.

(c) Any price advertisement shall be exact, without the use of
phrases, including, but not limited to, “as low as,” “and up,”
“lowest prices,” or words or phrases of similar import. Any
advertisement that refers to services, or costs for services, and that
uses words of comparison shall be based on verifiable data
substantiating the comparison. Any person so advertising shall be
prepared to provide information sufficient to establish the accuracy
of that comparison. Price advertising shall not be fraudulent,
deceitful, or misleading, including statements or advertisements
of bait, discount, premiums, gifts, or any statements of a similar
nature. In connection with price advertising, the price for each
product or service shall be clearly identifiable. The price advertised
for products shall include charges for any related professional
services, including dispensing and fitting services, unless the
advertisement specifically and clearly indicates otherwise.

(d) Any person so licensed shall not compensate or give anything
of value to a representative of the press, radio, television, or other
communication medium in anticipation of, or in return for,
professional publicity unless the fact of compensation is made
known in that publicity.

(e) Any person so licensed may not use any professional card,
professional announcement card, office sign, letterhead, telephone
directory listing, medical list, medical directory listing, or a similar
professional notice or device if it includes a statement or claim
that is false, fraudulent, misleading, or deceptive within the
meaning of subdivision (b).

(f) Any person so licensed who violates this section is guilty of
a misdemeanor. A bona fide mistake of fact shall be a defense to
this subdivision, but only to this subdivision.

(g) Any violation of this section by a person so licensed shall
constitute good cause for revocation or suspension of his or her
license or other disciplinary action.

(h) Advertising by any person so licensed may include the
following:

(1) A statement of the name of the practitioner.

(2) A statement of addresses and telephone numbers of the
offices maintained by the practitioner.

(3) A statement of office hours regularly maintained by the
practitioner.

(4) A statement of languages, other than English, fluently spoken
by the practitioner or a person in the practitioner’s office.

(5) (A) A statement that the practitioner is certified by a private
or public board or agency or a statement that the practitioner limits
his or her practice to specific fields.

(B) A statement of certification by a practitioner licensed under
Chapter 7 (commencing with Section 3000) shall only include a
statement that he or she is certified or eligible for certification by
a private or public board or parent association recognized by that
practitioner’s licensing board.

(C) A physician and surgeon licensed under Chapter 5
(commencing with Section 2000) by the Medical Board of
California may include a statement that he or she limits his or her
practice to specific fields, but shall not include a statement that he
or she is certified or eligible for certification by a private or public
board or parent association, including, but not limited to, a
multidisciplinary board or association, unless that board or
association is (i) an American Board of Medical Specialties
member board, (ii) a board or association with equivalent
requirements approved by that physician and surgeon’s licensing
board, or (iii) a board or association with an Accreditation Council
for Graduate Medical Education approved postgraduate training
program that provides complete training in that specialty or
subspecialty. A physician and surgeon licensed under Chapter 5
(commencing with Section 2000) by the Medical Board of
California who is certified by an organization other than a board
or association referred to in clause (i), (ii), or (iii) shall not use the
term “board certified” in reference to that certification, unless the
physician and surgeon is also licensed under Chapter 4
(commencing with Section 1600) and the use of the term “board
certified” in reference to that certification is in accordance with
subparagraph (A). A physician and surgeon licensed under Chapter
5 (commencing with Section 2000) by the Medical Board of
California who is certified by a board or association referred to in
clause (i), (ii), or (iii) shall not use begin insert any of end insert the begin delete term end delete begin insert terms “board,”
“certified,” “certification end insert begin insert , end insert begin insert ” or end insert “board certified” unless the full
name of the certifying board is also used and given comparable
prominence with the begin delete term end delete begin insert terms “board,” “certified,”
“certification,” or end insert “board certified” in the statement begin insert and unless
the term or terms are used in reference to a certifying board
meeting at least one of the criteria described in clause end insert begin insert (i end insert begin insert ), (ii), or
(iii) end insert .

For purposes of this subparagraph, a “multidisciplinary board
or association” means an educational certifying body that has a
psychometrically valid testing process, as determined by the
Medical Board of California, for certifying medical doctors and
other health care professionals that is based on the applicant’s
education, training, and experience.

begin delete

For purposes of the term “board certified,” as used in this
subparagraph, the terms “board” and “association” mean an
organization that is an American Board of Medical Specialties
member board, an organization with equivalent requirements
approved by a physician and surgeon’s licensing board, or an
organization with an Accreditation Council for Graduate Medical
Education approved postgraduate training program that provides
complete training in a specialty or subspecialty.

end delete

The Medical Board of California shall adopt regulations to
establish and collect a reasonable fee from each board or
association applying for recognition pursuant to this subparagraph.
The fee shall not exceed the cost of administering this
subparagraph. Notwithstanding Section 2 of Chapter 1660 of the
Statutes of 1990, this subparagraph shall become operative July
1, 1993. However, an administrative agency or accrediting
organization may take any action contemplated by this
subparagraph relating to the establishment or approval of specialist
requirements on and after January 1, 1991.

(D) A doctor of podiatric medicine licensed under Chapter 5
(commencing with Section 2000) by the Medical Board of
California may include a statement that he or she is certified or
eligible or qualified for certification by a private or public board
or parent association, including, but not limited to, a
multidisciplinary board or association, if that board or association
meets one of the following requirements: (i) is approved by the
Council on Podiatric Medical Education, (ii) is a board or
association with equivalent requirements approved by the
California Board of Podiatric Medicine, or (iii) is a board or
association with the Council on Podiatric Medical Education
approved postgraduate training programs that provide training in
podiatric medicine and podiatric surgery. A doctor of podiatric
medicine licensed under Chapter 5 (commencing with Section
2000) by the Medical Board of California who is certified by a
board or association referred to in clause (i), (ii), or (iii) shall not
use the term “board certified” unless the full name of the certifying
board is also used and given comparable prominence with the term
“board certified” in the statement. A doctor of podiatric medicine
licensed under Chapter 5 (commencing with Section 2000) by the
Medical Board of California who is certified by an organization
other than a board or association referred to in clause (i), (ii), or
(iii) shall not use the term “board certified” in reference to that
certification.

For purposes of this subparagraph, a “multidisciplinary board
or association” means an educational certifying body that has a
psychometrically valid testing process, as determined by the
California Board of Podiatric Medicine, for certifying doctors of
podiatric medicine that is based on the applicant’s education,
training, and experience. For purposes of the term “board certified,”
as used in this subparagraph, the terms “board” and “association”
mean an organization that is a Council on Podiatric Medical
Education approved board, an organization with equivalent
requirements approved by the California Board of Podiatric
Medicine, or an organization with a Council on Podiatric Medical
Education approved postgraduate training program that provides
training in podiatric medicine and podiatric surgery.

The California Board of Podiatric Medicine shall adopt
regulations to establish and collect a reasonable fee from each
board or association applying for recognition pursuant to this
subparagraph, to be deposited in the State Treasury in the Podiatry
Fund, pursuant to Section 2499. The fee shall not exceed the cost
of administering this subparagraph.

(6) A statement that the practitioner provides services under a
specified private or public insurance plan or health care plan.

(7) A statement of names of schools and postgraduate clinical
training programs from which the practitioner has graduated,
together with the degrees received.

(8) A statement of publications authored by the practitioner.

(9) A statement of teaching positions currently or formerly held
by the practitioner, together with pertinent dates.

(10) A statement of his or her affiliations with hospitals or
clinics.

(11) A statement of the charges or fees for services or
commodities offered by the practitioner.

(12) A statement that the practitioner regularly accepts
installment payments of fees.

(13) Otherwise lawful images of a practitioner, his or her
physical facilities, or of a commodity to be advertised.

(14) A statement of the manufacturer, designer, style, make,
trade name, brand name, color, size, or type of commodities
advertised.

(15) An advertisement of a registered dispensing optician may
include statements in addition to those specified in paragraphs (1)
to (14), inclusive, provided that any statement shall not violate
subdivision (a), (b), (c), or (e) or any other section of this code.

(16) A statement, or statements, providing public health
information encouraging preventative or corrective care.

(17) Any other item of factual information that is not false,
fraudulent, misleading, or likely to deceive.

(i) Each of the healing arts boards and examining committees
within Division 2 shall adopt appropriate regulations to enforce
this section in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.

Each of the healing arts boards and committees and examining
committees within Division 2 shall, by regulation, define those
efficacious services to be advertised by businesses or professions
under their jurisdiction for the purpose of determining whether
advertisements are false or misleading. Until a definition for that
service has been issued, no advertisement for that service shall be
disseminated. However, if a definition of a service has not been
issued by a board or committee within 120 days of receipt of a
request from a licensee, all those holding the license may advertise
the service. Those boards and committees shall adopt or modify
regulations defining what services may be advertised, the manner
in which defined services may be advertised, and restricting
advertising that would promote the inappropriate or excessive use
of health services or commodities. A board or committee shall not,
by regulation, unreasonably prevent truthful, nondeceptive price
or otherwise lawful forms of advertising of services or
commodities, by either outright prohibition or imposition of
onerous disclosure requirements. However, any member of a board
or committee acting in good faith in the adoption or enforcement
of any regulation shall be deemed to be acting as an agent of the
state.

(j) The Attorney General shall commence legal proceedings in
the appropriate forum to enjoin advertisements disseminated or
about to be disseminated in violation of this section and seek other
appropriate relief to enforce this section. Notwithstanding any
other provision of law, the costs of enforcing this section to the
respective licensing boards or committees may be awarded against
any licensee found to be in violation of any provision of this
section. This shall not diminish the power of district attorneys,
county counsels, or city attorneys pursuant to existing law to seek
appropriate relief.

(k) A physician and surgeon or doctor of podiatric medicine
licensed pursuant to Chapter 5 (commencing with Section 2000)
by the Medical Board of California who knowingly and
intentionally violates this section may be cited and assessed an
administrative fine not to exceed ten thousand dollars ($10,000)
per event. Section 125.9 shall govern the issuance of this citation
and fine except that the fine limitations prescribed in paragraph
(3) of subdivision (b) of Section 125.9 shall not apply to a fine
under this subdivision.