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Stealth marketing of medical services on YouTube

By Rebecca Tushnet

This NYT feature on doctors who give consumers incentives to post doctor-created ads as their own contributions to YouTube raises some important advertising law questions, intertwined with the ethical ones.

LAST September, Michelle Wilder left Dr. Emil W. Chynn of Park Avenue Laser armed with ... a DVD of her Lasek surgery ....

Her viewing pleasure was not Dr. Chynn?s only concern. He hoped Ms. Wilder would be so thrilled with her results that she would post the 10-minute video on YouTube, along with his credentials, a link to his Web site, and a rave review.

As an incentive, Dr. Chynn offered either a free Botox injection worth $400 or a $100 discount on the $5,000 Lasek operation ....

First of all, nothing in the article indicated that consumers actually produce the ads themselves. ("Some have been produced by marketing companies like Spore Medical or SalemGlobal Internet both of which began offering video packages in the last year, while others have been videotaped and edited by a staff member.") At the very least, the ads are subject to standard regulations on endorsements and testimonials, and they should be disclosed as ads. Moreover, some of the testimonials are actually false, in clear violation of the law (see sec. 255(a), "Endorsements must always reflect the honest opinions, findings, beliefs, or experience of the endorser"):

A Benjamin was enough to silence one dissatisfied patient, who asked to remain anonymous because he is still undergoing treatment for an operation he had done about six months ago. Never mind that the video went up almost immediately, before he had time to heal, he said. ?Regardless of whether I?m happy ? that?s not going to stop me from posting,? he said. ?It?s money in my pocket.?

As it turns out, he isn?t satisfied with his results, but he hasn?t taken down his glowing endorsement.

An ethicist asks, ?If a patient voluntarily surrendered their privacy by having their procedure filmed and posted in trade for a financial cut on a service, what?s wrong with that?? The FTC, however, takes a different view.

Full post as published by 43(B)log on June 26, 2008 (boomark / email).