FTC Staff Comment Before the Idaho State Board of Chiropractic Physicians Concerning Proposed Amendments to Board Rules

FEDERAL TRADE COMMISSION COMMISSION AUTHORIZED
Seattle Refional Office
2806 Federal BuUdiIll
9US Secoad Aw:Due
Seattle, VtUhiDgton 98114
(206) 442-4656
Deoember 	7, 	1987
Dorothy 	Hod~8on, 	Chairman
Idaho 	State 	Board 	of 	Chiropractic 	Physicians
Bureau 	of 	Oooupational 	Lioensee
Department 	of 	Self-Governing 	A~&nciee
state 	of 	Idaho
2417 	Bank 	Drive 	*312
Bois8, 	Idaho 	83705-2598 	~
Attention: 	M. 	D. 	Gregersen, 	Chief
Bureau 	of 	Oooupational 	Licenses ----- 	- --------
Dear 	Ms. 	Hodgson:
The 	Seattle 	Regional 	Office 	and 	the 	Bureaus 	of 	Consumer
Protection, 	Economics 	and 	Co~petition of 	the 	Federal 	Trade
Commission 	are 	plea.ed 	to 	have 	the 	opportunity 	to 	comment 	on 	the
proposed 	amendments 	to 	the 	rules 	of 	thQ 	Idaho 	State 	Board 	of
Chiropractic 	Physicians. 1
In 	our 	comments, 	we 	focus 	upon 	Section 	H of 	the 	proposed
rules. 	This 	section 	governs 	advertising 	by 	chiropractic
physicians. 	Several 	aspects 	of 	the 	proposed 	changes 	to 	Section 	H
are 	likely 	to 	benefit 	consumers. 	For 	example, 	the 	Board's
general 	limitation of 	its 	re.trictions 	on 	advertising 	by
chiropractio 	physicians 	to 	fraudulent, 	false, 	deceptive 	or
misleading 	advertising 	1s 	likely 	to 	benefit 	consumers 	by
encouraging 	all 	forms 	of 	truthful, 	nondQcQptiv8 	advertising. 	The
Board's 	proposed 	deletion 	of 	its 	present 	restrictions 	on
"sensational 	or 	fabulous" 	.tatements 	and 	on 	advertisin~ that 	has
"a 	tendency 	to 	... 	impose 	upon 	credulous 	or 	ignorant 	persons"
may 	benefit 	consumers 	by 	removing 	reltrictions 	that 	may 	d6ter
some 	torme 	of 	truthful, 	nondeceptive 	advertising.
1 	These 	comments 	represent 	the 	vi.ws 	of 	the 	Seattle 	Regional
Ottice 	and 	the 	Bureaus 	of 	Con.umQr 	Protection, 	Eoonomics 	and
Competition 	of 	the 	Federal 	Trade 	Commil&ion. 	Th~y do 	not
necessarily 	represent 	the 	views 	of 	the 	Commission 	or 	any
individual 	Commissioner. 	The 	Commission, 	howevQr, 	has 	authorized
thQ 	lubm15Qion 	of 	thQ,e 	commentl 	to 	you.
_._---- --_. 	_.' 	---

Wa 	are 	concerned, 	however, 	that 	two 	provisione 	in 	the
proposed 	amendments 	may 	harm 	consumers 	by 	rGstricting 	the
dissamination 	of 	truthful 	information. 	These 	provieionG 	limit
advertiaing 	by 	chiropractic 	referral 	service& 	and 	prohibit
adverti.inq 	that 	Mis 	likely 	to 	appeal 	primarily 	to~a'lay person's.
fear., 	ignorance 	or 	anxieti&s 	regarding 	his 	stateO~ihe~lth or
..,physical 	well-being. M 	Bocauue 	theee 	provisions 	may 	o.eter
truthful, 	nondaceptive 	advertising 	without 	providing
countervailing 	benefits, 	the 	Board 	may 	wish 	to 	consider 	deleting
these 	restrictions 	from 	its 	propolJal. 	Specifio 	instances 	of
false 	or 	mialaadinq 	advertising 	that 	fall 	within 	these 	categorieo
would, 	of 	cour.e, 	still 	be 	prohibited 	under the 	Board'S 	general
prohibition 	of 	fraudulent, 	false, 	misleading 	or 	doceptive
advertiJS1ng.
I. 	Interest 	and 	Experience 	Qf 	the 	Federal 	Trade 	CommisqiQn
The 	Federal 	Trade 	Commission 	is 	empowered 	under 	Section 	5 	of
the 	Federal 	Trade 	Commission Act, 	15 	U. S. C. 	§45, 	to 	prevent
unfair 	methods 	of 	competition 	and 	unfair 	or 	deceptive 	acta 	or
practices 	in 	or 	affecting 	oommerce. 	Pursuant 	to 	ita 	statutory
mandate, 	the 	Commission 	has 	attempted 	to 	encourage 	competition
among 	members 	of 	1i~ens~rof.s.iQns~_-the_maxLmum-sxtan~-
----------compatibie 	with 	other 	legitimate 	state 	and 	federal 	goala. 2 	The
Commission's 	staff 	has 	examined 	the 	competitive 	effects 	of
restrictions 	on 	the 	advertising 	and 	business 	practices 	of 	Btate-
licensed 	professionals, 	including 	physicians, 	dentists,
optometrists 	and 	lawyers. 	Our 	goal 	is 	to 	identify 	and 	seek 	the
removal 	of 	restrictions 	that 	impede 	competition 	or 	increase 	coste
without 	providing 	countervailin9 	benefits 	to 	con~umers.
2 	Under 	Section 	6 	of 	the 	Federal 	Trade 	Commission 	Act, 	15
U. S. C. 	S 46/ 	the 	Commi.sion 	is 	authorized 	to 	make 	public 	the
information 	it 	haa 	gathered 	on 	oompetition 	end 	coneumer 	welfare
issues. 	Pursuant 	to 	this 	.ection, 	the 	Commission's 	staff 	has
preViously 	submitted 	comments 	to 	state 	governments 	and
professional 	associations 	on 	the 	regulation 	of 	professional
advertising. 	See. 	Ir S., 	Comments 	of 	the 	Federal 	Trade 	Commission
Staff 	on 	the 	Rules 	of 	Professional 	Conduct 	of 	the 	New Jersey
Supreme 	Court, 	submitted 	to 	the 	Committee 	on Attorney 	Advertising
of 	the 	New 	Jergey 	supreme 	Court, 	November 	9, 	1967; 	Comments 	of
the 	Federal 	Trede 	Commission 	Staff 	on 	the 	rules 	of 	the 	New 	Mexico
State 	Board 	of 	Chiropractic 	Examiners, 	December 17, 	1986;
Comment. 	of 	tho 	F.deral 	Trade 	Commis.ion 	St~ff on 	the 	RQgulations
of 	the 	Virginia 	Board 	of 	Dentistry, 	April 	3, 	1966 	(available 	from
the 	Offics 	of 	Public 	Affairs, 	Federal 	Trade 	Commission).
2

The 	Commission 	has 	found 	some 	restrictions 	on .truthful
advertising 	by 	professional. 	to 	violate 	S~ction 5 	of ' the 	Federal
Trade 	Commission Act. 3 	These 	Commission 	findings 	are 	consistent
with 	reoent 	U. S. 	Supreme 	Court 	decision5, 	which 	havQ'struoK 	down
various 	restrictions 	on 	professional 	advertising 	that 	restrict
the 	flow 	of 	useful 	information 	to 	consumers 	without 	produoing
countervailing 	benefit5. 4 	Studies 	oonducted 	both 	by 	the
Commission .taft 	and 	by 	aoademic 	rQsea~chere also 	&upport 	the
elimination 	of 	restrictions 	on 	truthful, 	nondecQptive 	advertising
3 	~ 	Amerioan 	Medical 	As.oeiation, 	94 	F.T.C. 	701 	(1979),
Off'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	aff'd 	memo 	by 	an 	equally
divided 	CQurt, 	455 	U. S. 	676 	(~98~ho;'ding that 	thlLAMlLhad--
il~.ga~y consprred 	to 	restrain 	competition 	among 	physicians 	by
suppressing, 	through 	its 	ethical 	gUidelines, 	truthful 	advertieing
and 	other 	forms 	of 	solicitation 	by 	member 	phy'icians.) 	The 	AHA
decision 	speoifically 	held 	Mthat 	broad 	bans 	on 	advertising 	and
solicitation 	are 	inoonsiltent 	with 	the 	nation' s 	publio 	polioy."
94 	F.T.C. 	at 	1011. 	~. 	Wyoming 	State 	Board 	of 	Chiropractic
Examiners, 	File 	No. 	861-0019 	(October 	14, 	1987) 	(tentatively
approved 	consent 	order) 	(settling 	charges 	that 	the 	Board, 	through
its 	re~ulations, had 	restrained 	competition 	by 	restricting
truthful 	advertising 	of 	prices, 	terms 	and 	other 	information)i
Wyomin9 	State 	Board 	of 	RegiQtration 	in 	Podiatry, 	107 	F,T,C. 	19
(1966) 	(consent 	order) 	(settling 	char9~s that 	the 	Board, 	through
it. 	regUlations, 	h~d restrainQd 	competition 	among 	podiatrists 	by
restrictins 	the 	truthful 	aavertising 	of 	podiatrio 	gooas 	and
services); 	and 	Louisiana 	State 	Board 	of 	Dentistry, 	106 	F. T. C. 	65
(1985) 	(oonsent 	order) 	(.ettling 	charges 	that 	the 	Board, 	through
its 	regulation., 	had 	restrained 	competition 	by 	restricting 	the
truthful 	advertising 	of 	prices 	and 	claims 	of 	professional 	5uperiority.
4 	~, 	~, 	ZaudQrer 	v. 	Office 	of 	Disciplinary 	Couneel 	of
the 	Supreme 	Court 	of 	Ohio, 	471 	U. S. 	626 	(1985) 	(holding 	that 	an
attorney 	may 	not 	be 	disciplined 	for 	Goliciting 	legal 	business
through 	printed 	advertising 	containing 	truthful 	and 	nondeceptive
information 	regarding 	the 	legal 	rights 	of 	potQntial 	cliente 	or
for 	using 	nondeoeptive 	illuQtrations 	or 	pictures); 	Bates 	v. 	Stnte
Bar 	of 	Arizona, 	433 	U. S. 	350 	(1977) 	(holding 	a 	state 	cuprQme
court 	prohibition 	on 	advQrtising 	invalid 	under 	the 	First
Amendment 	and 	according 	great 	importance 	to 	the 	role 	of
advertising 	in 	the 	efficiQnt 	functioning 	of 	the 	market 	for
professional 	aervices); 	and 	Virginia 	State 	Board 	of 	Pharmacy 	v.
Virginia 	Citizens 	Consumer 	Council, 	425 	U. S. 	748 	(1976) 	(holding
a 	Virginia 	prohibition 	on 	advertising 	by 	pharmaciste 	invalid).
3

by 	professional.. 	For 	example, 	cQvere.l 	atudie" 	indicate 	that
prices 	for 	professional 	goods 	and 	services 	are 	higher 	when
advertisinq 	i. 	restricted 	or 	prohibited 	than 	whQD 	it 	1e 	allowed. 5
Empirical 	evidence 	also 	indicates 	that, 	even 	though 'such
restrictions 	lead 	to 	increased 	prices, 	thQY 	do 	not~ncrease the
quali ty 	of 	the 	II ervi 088 	providec1 	to 	oons umers. 6 	':!
II. 	Proposed 	Deletion 	of 	Restrictions 	on 	SenSfjti9nal 	or
Fabulous 	Statements 	and 	00 	Advertising 	That 	May 	Tend 	to
Impose 	Upon 	Credulous 	or 	IgnQrant 	Persons
The 	proposed 	amendments 	would 	delete.the 	Board's 	present
restrictions 	on 	"sensational 	or 	fabulous" 	statements 	and 	on
adverti~ing that 	"has 	a 	tendency 	to 	... 	impose 	upon 	credulous
or 	ignorant 	persons. H 	Since 	these 	provisions 	may 	deter 	truthful,
nondeceptive 	advertising, 	the 	proposed 	deletion 	of 	thQse
restrictions 	may 	benefit 	consumers. 	Specific 	instances 	of 	false
or 	misleading 	advertising 	that 	fall 	within 	these 	cDtegories
would, 	of 	course, 	still 	be 	prohibited 	under 	the 	Board's 	general
prohibition 	of 	fraudulent, 	false, 	mialeading 	or 	deceptive
advertising.
_ 	'I'lJe-Board' s 	ourr-en~an on 	seneatlonar or 	fabulous- ---
advertising 	may 	deter 	truthful 	advQrtising 	beoaus~ it 	is 	subject
to 	broad 	and 	subjective 	interpretations. 	Such 	interprotations
may 	prohibit 	nonQeCeptiv8 	statements 	or 	innovative 	marketing
techniques 	that 	are 	commonly 	used 	by 	other 	providerl 	of 	goods 	and
services. 	For 	example, 	the 	use 	of 	certain 	words 	or 	phrases, 	such
as 	IIluperbll 	or 	"money-back 	guarant,-e ll , 	or 	certain 	types 	of
advertising 	techniques, 	such 	as 	televis~on jingles, 	may 	be
5 	Bureau 	of 	Eoonomics 	and 	Cleveland 	~Qgional Office, 	Federal
Trade 	Commission, 	Improving 	Consumer 	Acoe~s to 	Legal 	Services:
The 	Case 	for 	~Qmoving Restrictions 	on 	Truthful 	Advertising
(1984); 	Bureau 	of 	EoonomioQ, 	Federal 	Trade 	Commission, 	Effects 	of
Restrictions 	on Advertising 	and 	Commeroial 	Praotioo 	in 	the
Professions: 	The 	Case 	of 	Optometry 	(1980); 	Benham 	and 	Benham,
Be~ulat1ns Through 	the 	Professions; 	A 	Perspective 	on
Information 	Control, 	18 	J. L. 	& 	Econ. 	421 	(1975); 	Benham, 	The
E;ffect 	Of 	AdYe:ctisin9 	on 	the 	Price 	Of 	Eyeglau;es, 	15 	J. L. 	&
Econ. 	337 	(1972).
6 	Bure8U 	of 	Economics, 	Federal 	Trade 	Commi •• ion, 	Effect& 	of
Restriction. 	on 	Advertising 	and 	Commercial 	Praot1CG 	in 	the
Professions: 	The 	Case 	of 	Optometry 	(1980); 	Cady, 	Restricted
Advertising 	and 	Competition: 	The 	Ca•• 	of 	Retail 	Drug; 	(1976);
MoChesney 	and 	Muris, 	Ihe 	Effect 	of 	Adyertising 	on 	the 	QUplity 	of
Legal 	Services, 	6S 	A. B. A. J. 	1503 	(1979); 	Muri" 	and 	McChesney,
Advertiling 	and 	the 	Price 	and 	Quality 	of 	Legal 	Seryice6i 	The
Case 	for 	~egal 	Clinics, 	1979 	Am. 	B. 	Found. 	Re5Gle.rch 	J. 	179
(1979),
4

viewed 	as 	sensational 	when 	USQd 	to 	advertiue 	professional
services. 	Such 	adverti8emente 	may, 	however, 	be 	particularly
effective 	in 	communicating 	accurate 	information 	to 	consumers.
The 	Board'. 	current 	prohibition 	of 	advertisinq 	that 	has 	a
tendency 	to 	impose 	upon 	credulous 	or 	ignorant 	pereon~ may
~1milarly deter 	the 	~i.8emination of 	truthful, 	nondeceptive
information. 	Under 	this 	standard, 	a 	chiropraotor 	could 	be 	held
responsible 	for 	ensuring 	that 	his 	or 	her 	advertisements 	will 	not
b. 	unreasonably 	misinterpreted 	by 	a 	few 	uninformed 	or
unrepresentative 	members 	of 	the 	tar98t 	audience. 	Such 	a 	standord
may 	be 	broader 	than 	necessary 	to 	protect 	consumers 	from 	falee 	or
deceptive 	~dvertising. 	For 	example, 	in 	the 	FedGral 	Trade
Commis6~on' s 	1983 	Deoeption 	Policy 	Statement, 	the 	Commission
noted 	that, 	to 	be 	deceptive, 	an 	advertisement 	mu&t 	be 	likely 	to
mislead 	consumers 	acting 	rQ~sonably under 	the 	circumetanoes. 7
Imposing 	responsibility 	for 	unreasonable 	interpretations 	of 	their
advertisements 	upon 	chiropractors 	may 	significantly 	deter
truthful 	advertising 	about 	chiropractic 	services~ 	thereby
depriving 	chiropractors 	of 	a 	significant 	competitive 	device 	and
denying 	potentially 	valuable 	information 	to 	consumere. 	As
discussed 	below, 	howQver, 	if 	particular 	advertisements 	are
targeted 	a~roup. tha~_~s liKet~to-p~-partic~lyoredu~UG
------or-I~norant, it 	may 	be 	appropriate 	to 	Qxamine 	the 	advertisements
from 	the 	perspective 	of 	the 	typical 	member 	of 	that 	group. 8 	By
Qmploying 	Guch 	8 	standard 	in 	enforcing 	its 	general 	prohibition 	of
deceptive 	or 	misleading 	advertising, 	the 	Board 	should 	be 	able 	to
effectively 	prohibit 	adverti&ing 	that 	is 	likQly 	to 	deoeivo 	or
mislead 	particularly 	susceptible 	groups.
7 	Cliffdale 	Associates, 	103 	F.T.C. 	110, 	174 	(1984) 	(appendi:K
to 	opinion.) 	The 	Commis.ion 	ha~ 	also 	held 	that:
An 	advertiser 	cannot 	be 	charged 	with 	liability 	with 	resp~ct
to 	every 	conceivable 	misconception, 	however 	outlandish,
to 	which 	his 	representations 	might 	be 	subject 	among 	the
foolish 	or 	feeble-minded. 	Some 	people, 	becnuse 	of
ignorance 	or 	incomprehension, 	may 	be 	misled 	by 	$ven 	B
scrupulously 	honest 	claim. 	Perhaps 	a 	few 	mi5guided
souls 	believe, 	for 	example, 	that 	all 	"Danish 	paetry" 	is
made 	in 	DenmarK. 	I. 	it 	therefore 	an 	actionable
deception 	to 	advertise 	"Danish 	pastry" 	when 	it 	is 	made
in 	this 	country? 	Of 	course 	not. 	A representation 	does
not 	become 	"falle 	and 	deceptive" 	merely 	because 	it
will 	be 	unreasonably 	misunder&tood 	by 	an 	in.ignificant
and 	unrepresentative 	sQgment 	of 	the 	class 	of 	pereons 	to
whom 	the 	representation 	is 	a~dre88ed.
H, in;; 	W, 	Ki r 0 h n G r, 	6 3 	F. T. C. 	1 2 8 2, 	1 2 9 0 	(l 9 6 3 ) .
8 	~ 	Cliffdale 	AssooiateEi, 	103 	F.T.C. 	110, 	179 	(1984).

III. 	Proposed 	Restrictions 	on 	Advertising 	by 	Chiropracti~
Referral 	Services 	and 	on 	Advertisements 	Likely 	to 	Appeal 	to
Fearl. 	Ignorance 	or 	An~ieties Cgncernin9 	Heal;h'
Sections 	H(2) 	and 	H(4) 	of 	the 	Board's 	proposedi rules 	impo:3e
~new restriction. 	on 	advertising 	by 	chiropractic 	referral 	eorvices
and 	prohibit 	advertisements 	that 	are 	"likely 	to 	appeal 	primarily
to 	a 	lay 	person's 	fears, 	ignorance 	or 	anxieties 	concerning 	his
health 	or 	physical 	well-being." 	Since 	both 	of 	these 	provieions
may 	prohibit 	the 	dissemination 	of 	truthful, 	nondeceptive
information, 	the 	Board 	may 	wish 	to 	consider 	narrowing 	or 	deleting
Section. 	H(2) 	and 	H(4). 9
In 	general, 	referral 	services 	serve 	a 	valuable 	function 	for
health 	care 	professional, 	and 	for 	consumers. 	Such 	eervicee
enable 	practitioners 	to 	pool 	their 	advertising 	resources 	while
maintaining 	independent 	practices. 	Referral 	services 	also
benefit 	consumars 	by 	providi~g useful 	information 	about 	the
availability, 	locations, 	hours 	or 	areas 	of 	expertise 	of
particular 	chiropractors. 	Section 	H(2) 	Of 	the 	proposed 	rule
states, 	however, 	tha~;_~__ is 	1I~~sle~din...g and 	dec_ap-±i.Yef~L-iL----
------chTropractor-or 	group 	of 	chiropractors 	to 	advertiso 	a
chiropractic 	referral 	service 	or 	bureau 	unless 	each 	adv~rtisement
specifically 	names 	each 	of 	the 	individual 	chiropractors 	who 	are
participating 	in 	such 	service 	or 	bureau. II 	Advertisements 	that 	do
not 	contain 	the 	names 	of 	all 	members 	of 	the 	referral 	bureau 	are
not, 	however, 	inherently 	deceptive 	and 	thus 	do 	not 	seem
appropriate 	targets 	for 	a 	total 	ban. 	Furthermore, 	requiring 	a
chiropractic 	referral 	service 	to 	list 	all 	members 	of 	the 	service
in 	each 	advertisement 	i. 	likQly 	to 	be 	undUly 	costly. 	Indeed,
9 	It 	is 	our 	understanding 	that 	Section 	H(2) 	is 	not 	intended 	to
prohibit 	all 	advertisements 	that 	make 	only 	a 	partial 	disclo6ure
of 	relevant 	facts. 	An 	absolute 	prohibition 	on 	advertieemonts
that 	make 	only 	a 	partial 	disclosure 	of 	relevant 	facts 	would 	seem
overly 	broad 	since, 	by 	their 	vQry 	nature, 	most 	advertisernQnts
could 	not 	disclole 	all 	the 	facts 	relevant 	to 	decision. 	to 	select
particular 	chiropractic 	services 	or 	particular 	chiropractors.
The 	wordins 	of 	Section 	H(2) 	may 	sugge~t, 	however, 	that
advert~.ementQ that 	make 	only 	a 	partial 	disolosure 	of 	~ll
relevant 	facts 	are 	prohibited. 	The 	Board 	may 	wish 	to 	clarify 	the
language 	of 	the 	introductory 	sentence 	of 	Section 	H(2) 	to 	make 	it
clear 	that 	this 	section 	prohibits 	only 	advertisements 	that 	omit
material 	facts 	in 	a 	manner 	that 	is 	likely 	to 	deceive 	consumers.
It 	is 	also 	our 	under.tanding 	that 	Section 	H(2) 	prohibits
advertisements 	that 	omit 	material 	facts 	in 	a 	mannor 	that 	is
likely 	to 	deceive 	consumers 	whether 	or 	not 	such 	advertisemonts
fall 	within 	the 	specific 	categories 	let 	forth 	in 	Seotion 	H(2).
To 	make 	this 	clear, 	the 	Board 	may 	wish 	to 	replace 	the 	phraee
"more 	specifically" 	with 	the 	phrase 	II for 	eXllmple" 	in 	the 	second
Qentence 	of 	Section 	H(2).
6

this 	requirement 	may 	render 	some 	forms 	of 	advertising, 	euch 	as
radio 	or 	television 	advertising, 	prohibitively 	expensive, 	~s 	well
as 	significantly 	le.s 	effective. 	Placing 	such 	a 	bu~denecN~
requirement 	upon 	chiropractic 	referral 	services 	would 	Deem
harmful 	both 	to 	chiropractors 	and 	to 	consumer" 	wh¢ 	~ay be
.denied 	ace ••• 	to 	useful 	information 	about 	chiropractio 	sorvices."- .
It 	ia 	our 	understanding 	that 	the 	proposed 	restrictions 	on
advertisin9 	by 	ohiropractic 	rQferr.al 	services 	were 	designed 	at
least 	in 	part 	to 	address 	inltance& 	in which 	a 	few 	chiropractic
practitioner. 	may 	mislead 	consumers 	by 	deceptively 	advertising
themselvel 	as 	ohiropractic 	referral 	services. 	Such 	decoptive
practi~.s could, 	however, 	be 	addressed 	under 	the 	Board' E 	general
prohibition 	of 	£a18Q, 	misleading 	or 	deoeptive 	advertising. 	In
the 	alternative, 	the 	Board 	could 	draft 	a 	narrow 	re6~riotion that
would 	prohibit 	this 	type 	of·practice 	without 	imposing 	burdensome
restrictions 	on 	legitimate 	referral 	servioes. 	As 	presently
drafted, 	this 	provision 	would 	actually 	plaoe 	a 	9reate~ burdon 	on
legitimate 	referral 	servioesthat 	have 	large 	numbers 	of 	members
than 	on 	referral 	.ervices 	that 	have 	only 	a 	few 	members.
The 	Board' 8 	proposed 	prohibi tion 	of 	agver~;.~A~g tha~ i~L
In-e"1.yt-o 	appearprimarl.1.-y 	to the 	fears, 	ignorance 	or 	anxieties
of 	lay 	persons 	regarding 	their 	health 	or 	physical 	well-being 	may
also 	deter 	truthful, 	nondeceptive 	advertising 	by 	chiropractic
physicians. 	For 	example, 	this 	provision 	appears 	to 	prohibit
truthful, 	nondeoeptive 	advertising 	that 	addresses 	prospective
patients' 	concerns 	or 	anxieties 	about 	their 	h~alth even 	if 	those
concerns 	or 	anxieties 	are 	fully 	jU8tifiQd 	and 	could 	be 	alleviated
by 	appropriate 	chiropractic 	trQatment. 	Moreover, 	this
prohibition 	could 	be 	construed 	to 	prohibit 	virtually 	any
advertisement 	designed 	to 	attract 	the 	attention 	of, 	or 	even 	to
prOVide 	truthful 	information 	to, 	persons 	with 	particular 	physioal
problems 	that 	could 	be 	helped 	by 	chiropractic 	physicians. 	As 	a
r8sult, 	this 	restriction 	may 	stem 	the 	flow 	of 	useful 	information
about 	chiropractic 	sQrvices 	to 	the 	very 	consumers 	who 	need 	and
de~irQ that 	information 	tho 	most.
We 	appreciate 	the 	Board'S 	interest 	in 	prohibiting
advertisement. 	that 	prey 	upon 	lay 	persons' 	apprehensions 	about
their 	health, 	and 	we 	commend 	the 	Board'S 	efforts 	to 	clarify 	its
previous 	standard. 	However, 	a 	prohibition 	on 	all 	advertising
that 	may 	appeal 	to 	such 	apprehensionQ 	seems 	overly 	broad. 	The
Board 	can 	attaok 	.peoific 	instances 	of 	abusive 	adverticing 	that
miqht 	fall 	within 	this 	oategory 	under 	its 	general 	prohibition 	of
misleadinq 	or 	deceptive 	representations. 	In 	considering 	such
a6vertiaing, 	the 	Boar6 	may 	wish 	to 	take 	into 	aocount 	the
possibility 	that 	the 	advertising 	is 	tarqeted 	at 	groupe 	that 	may
not 	interpret 	it 	in 	the 	same 	manner 	that 	an 	ordinary, 	reasonable
oonsumer would. 	In 	its 	Deception 	Policy 	Statement, 	the
Commission 	discussed 	advertising 	directed 	at 	these 	types 	of
consumers. 	The 	Commis~ion indioated 	that 	terminn11y 	ill
consumers, 	for 	example, 	might 	bG 	particularly 	IUlcGptible 	to
exaggerated 	claims 	of 	cures. 	In 	such 	cnees, 	the 	Commicsion
7

1n~icate~ that 	it 	woul~ evaluate 	the 	advQrtising 	"from 	the
perspective 	of 	how 	it 	aff.cts 	the 	ordinary 	member 	of 	(the)
qroup.nlO 	Thus, 	in 	examining 	chiropractic 	advertieing 	that 	may
prey 	upon 	lay 	persons' 	apprehensions 	about 	their 	hQa-l-th, 	tho
Board 	may 	wish 	to 	evaluate 	the 	advertising 	from 	tha-perspective
_of 	the 	orOinary 	member 	of 	the 	sroups 	to 	whom 	such 	aavertising 	is
~arget60 in 	determining 	whether 	the 	advertising 	is 	mieloading 	or
deceptiv •.
Furthermore, 	in 	some 	inltances, 	misleading 	or 	doceptive
aOvertising 	of 	this 	type 	may 	be 	proscribed 	by 	Section 	H(3) 	of 	tho
Boar~'s proposed 	rules, 	which 	prohibits 	advertising 	that 	creates
false 	or 	unjustified 	expectations 	of 	beneficial 	troatment 	or
successful 	cure. 	Addressing 	specific 	instances 	of 	false 	or
mi,leading 	advertiaing 	seems 	preferable 	to 	prohibiting 	all
advertising 	that 	appeals 	primarily 	to 	pro~pective patients'
concerns 	about 	their 	health.
IV. 	Conclusion
The 	Board'i 	proposed 	limitation 	of 	its 	restrictions 	on
aOvertising 	by 	chiropractic 	physicians 	to 	fraudulent, 	false, 	_
---.,mi~ad-1-n9-or-11e-ee-pti-v.~ertising-isJ.TKe-ly 	to 	prove 	be-neficial
to 	consumers. 	The 	Board 	may, 	however, 	wish 	to 	consider
narrowing 	or 	deleting 	ita 	broad 	proposed 	restrictions 	on
advertising 	by 	chiropractic 	referral 	.ervices 	and 	on 	advertising
that 	ia 	likely 	to 	appeal 	primarily 	to 	the 	fears, 	ignorance 	or
anxieties 	of 	lay 	persons 	regarding 	their 	health 	or 	physical 	WGll-
being. 	Such 	restrictions 	could 	have 	the 	unintended 	effoct 	of
inhibiting 	the 	dissemination 	of 	truthful 	information 	about 	the
nature 	and 	AvailaDility 	of 	chiropractio 	services.
We 	appreciate 	your 	Willingness 	to 	consider 	our 	comments 	on
the 	Board's 	proposed 	rules. 	Please 	feel 	free 	to 	call 	or 	write 	if
we 	can 	be 	of 	any 	further 	assistance.
Sincerely,
~~r:_~~~
George ~~
Director
Seattle 	Regional 	Office
10 	Qliffdale 	Associates, 	103 	F.T.C. 	110, 	179 	(1984).
8