Is It Time to Audit Your Regulated Business’ Marketing Compliance?
H.G. Wells notoriously said advertising is “legalized lying.” Wells obviously never worked in a regulated industry like law, healthcare, or finance, where a misstatement or exaggeration can lead to unwanted regulatory scrutiny and fines or other punishments. Unfortunately, too many marketing agencies don’t understand or respect how serious the regulatory environment is for these industries.
At LaFleur, we’ve worked with regulated industry marketing since our inception. In this article, we outline some key issues that may indicate it’s time to review your marketing plan or reassess your marketing partners.
What Is Marketing Compliance?
While companies in nonregulated industries routinely make sweeping generalizations and vague promises in their ads, companies in regulated industries can face penalties if they stretch the truth or ignore advertising rules. Most regulatory bodies, from your state bar association to your state’s health insurance regulators, won’t hesitate to impose consequences if your company publishes an ad that runs afoul of the rules.
To ensure your compliance with regulations, you and your marketing partners need to regularly assess your content and modify it as needed.
4 Signs You Need a Marketing Compliance Audit
Regulatory frameworks change constantly. If you haven’t reviewed your marketing content’s compliance in a long time, you’re probably due for an audit. There are also a few surefire signs it’s time to review your content and reconsider your marketing partner.
1. You Run a Law Firm and You’re Sharing Client Information Without Express, Informed Consent
In 2018, the American Bar Association issued Formal Opinion 480. In this opinion, the ABA took a hard line on the types of information law firms can share via blog articles, social media profiles, and other online channels.
According to the ABA, you must get express, informed consent before you share any information about a client or their case. This opinion reaches beyond traditionally privileged information like the details of a settlement or the circumstances surrounding a claim.
Under the opinion, lawyers should never share any information about clients that could reasonably help another person identify the client or their case. The opinion even advises attorneys against seemingly innocuous behaviors like “checking in” to a courthouse on Facebook or blogging about a hypothetical situation that mirrors a real client’s circumstances. And this obligation to keep client information private does not end even when the facts of a case become public record.
The ABA’s ethics opinions aren’t binding, and violating the opinion won’t draw the ire of your state bar association — yet. However, many state bars use the ABA’s ethical guidelines and opinions as models for their own policies, so this rigorous requirement may soon become mandatory in your state.
As of 2019, law firms in North Carolina can no longer offer promotions or contests that involve liking, commenting, or following their social media profiles. In its formal ethics opinion, the North Carolina State Bar noted that people increasingly consider reviews, likes, and follows as an endorsement of a law firm’s services. So, if your firm is based in North Carolina and you’re offering an incentive, such as tickets, to get social media likes and follows, you’re in violation of state bar association rules.
So far, no other states have adopted similar rules, but your law firm needs to stay abreast of new rules and be prepared for anything. If you’re not sure whether your policies comply with the current ethical rules, then it’s time to perform a comprehensive audit of your marketing content.
2. Your Marketing Partner Doesn’t Have a Healthy Fear of the SEC or FINRA
If you’re dealing with securities and financial planning, a constellation of regulatory bodies oversees all your work and communications, so you can’t afford to make misleading statements or omit a necessary disclaimer.
Unfortunately, many marketing agencies don’t understand that one errant statement in a paid advertising campaign can put you out of compliance. If your marketing partner doesn’t understand the current regulatory framework, you need to start considering new partners that do.
At LaFleur, we know that simply because the SEC has proposed new (and exciting) changes to the Investment Advisers Act, we can’t act on them quite yet. However, when financial planners can start sharing testimonials and endorsements, we’ll be ready to roll out compelling content right away.
3. Your Agency Has Never Heard of an IRB
Admittedly, before we became involved with an innovative research study that aims to understand Alzheimer’s and dementia, the LaFleur team was not very experienced with institutional review boards. However, we’ve quickly grown familiar with their submission and review processes.
If your marketing agency doesn’t understand the importance of an IRB review and can’t work within the board’s strict deadlines, you may need to explore another agency that respects the process and takes the IRB seriously.
4. You’re Not 100% Sure What’s Acceptable in Advertising According to HIPAA and State Regulators
Healthcare organizations operate in a complex regulatory environment. In addition to truth-in-advertising laws, you need to address HIPAA and state regulators’ expectations. It’s sometimes hard to understand exactly what’s allowed.
For example, LaFleur has worked with a California healthcare organization that operates under a limited Knox-Keene license. The rules regarding this type of license say that the organization cannot directly market or advertise to potential members. To ensure our client’s compliance, we had to quickly learn and respect the limitations associated with this type of healthcare licensure. We found creative ways to help our client build brand awareness across various audiences without stretching the rules.
If you’re not sure how to balance a similar obligation, it’s time to talk to a marketing partner who has experience handling these types of challenges.
LaFleur: Committed to Marketing Compliance and Our Clients’ Success
Since our founding in 2014, LaFleur has focused on highly regulated industries, including law and healthcare. If you’re looking for a marketing partner who understands your industry and its marketing compliance requirements, we’d love to meet you.
2019 Formal Ethics Opinion 6: Offering incentive to engage with law practice’s social networking sites. (2019, October 25). North Carolina State Bar. Retrieved from https://www.ncbar.gov/for-lawyers/ethics/adopted-opinions/2019-formal-ethics-opinion-6/
Formal Opinion 480: Confidentiality obligations for lawyer blogging and other public commentary. (2018, March 6). American Bar Association. Retrieved from https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_formal_opinion_480.pdf
Securities and Exchange Commission. (2019). Investment Adviser Advertisements; Compensation for Solicitations (Release No. IA-5407; File No. S7-21-19). Washington, D.C.: Securities and Exchange Commission. Retrieved from https://www.sec.gov/rules/proposed/2019/ia-5407.pdf