Bill Text: CA SB399 | 2011-2012 | Regular Session | Introduced
Bill Title: Healing arts: advertising.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-31 - Returned to Secretary of Senate pursuant to Joint Rule 56. [SB399 Detail]
Download: California-2011-SB399-Introduced.html
BILL NUMBER: SB 399 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Huff
FEBRUARY 16, 2011
An act to amend Section 651 of the Business and Professions Code,
relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
SB 399, as introduced, Huff. Healing arts: advertising.
Existing law provides for the licensure and regulation of the
practice of various healing arts practitioners by boards under 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.
This bill would make technical, nonsubstantive changes to those
provisions.
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. 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.
(i) For the purposes of this section, a dentist licensed under
Chapter 4 (commencing with Section 1600) may not hold himself or
herself out as a specialist, or advertise membership in or specialty
recognition by an accrediting organization, unless the practitioner
has completed a specialty education program approved by the American
Dental Association and the Commission on Dental Accreditation, is
eligible for examination by a national specialty board recognized by
the American Dental Association, or is a diplomate of a national
specialty board recognized by the American Dental Association.
(ii) A dentist licensed under Chapter 4 (commencing with Section
1600) shall not represent to the public or advertise accreditation
either in a specialty area of practice or by a board not meeting the
requirements of clause (i) unless the dentist has attained membership
in or otherwise been credentialed by an accrediting organization
that is recognized by the board as a bona fide organization for that
area of dental practice. In order to be recognized by the board as a
bona fide accrediting organization for a specific area of dental
practice other than a specialty area of dentistry authorized under
clause (i), the organization shall condition membership or
credentialing of its members upon all of the following:
(I) Successful completion of a formal, full-time advanced
education program that is affiliated with or sponsored by a
university based dental school and is beyond the dental degree at a
graduate or postgraduate level.
(II) Prior didactic training and clinical experience in the
specific area of dentistry that is greater than that of other
dentists.
(III) Successful completion of oral and written examinations based
on psychometric principles.
(iii) Notwithstanding the requirements of clauses (i) and (ii), a
dentist who lacks membership in or certification, diplomate status,
other similar credentials, or completed advanced training approved as
bona fide either by an American Dental Association recognized
accrediting organization or by the board, may announce a practice
emphasis in any other area of dental practice only if the dentist
incorporates in capital letters or some other manner clearly
distinguishable from the rest of the announcement, solicitation, or
advertisement that he or she is a general dentist.
(iv) 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.
(B) 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 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.
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.
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.
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.
(C) 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.
