What is false, misleading or deceptive advertising?

False, misleading or deceptive advertising is a complex concept to understand, particularly when applying it to advertising regulated health services.

There are many ways advertisements can be false, misleading or deceptive. Common misleading advertising includes:

  • advertising that makes therapeutic claims that are not supported by acceptable evidence 
  • advertising that lists health conditions a practitioner can ‘assist with’ or ‘treat’ but does not clearly specify what aspect of the health condition or associated symptoms the treatment will focus on or help (unqualified claims) 
  • statements about the effectiveness of the treatment that are not supported by acceptable evidence and offer the treatment as an alternative to other treatment options (comparative statements), and/or 
  • the misleading use of titles, in particular when specialist titles are used or words that imply a practitioner is a registered specialist when they are not.

While claims made in advertising by a health practitioner or other advertiser might be clear to them because they have all the information and context, the advertising risks being read or understood differently by consumers. When assessing if a claim made in advertising could be false, misleading or deceptive, it’s the consumer’s perception and understanding of what is published that counts.

Advertising can heavily influence a patient’s decision-making around their healthcare needs.

Some things to consider when thinking about your advertising from a consumer’s point of view are:

  • Could it be misleading? 
  • Does it tell them everything they need to know? 
  • Could it create an unrealistic expectation of what the treatment might do for them? 
  • Does it include a lot of complicated information? This can be confusing for patients

Remember: if in doubt about a claim; leave it out of your advertising.

Key

These examples highlight non-compliant advertising about regulated health services offered at profession specific or multi-disciplinary clinics on websites, social media sites such as Facebook, print advertisements and/or advertising on third party websites.

Text in green means this is okay and is unlikely to mislead consumers.
Text in orange means it can depend. If you have provided the appropriate context and clarification in your advertising, it is unlikely to be misleading to consumers.
Text in red means this advertising is in breach of the legal requirements, and you should remove it from your advertising.

Example 1 - Considered misleading and deceptive, not supported by acceptable evidence

Advertising content Why it is non-compliant Changes that would help this advertising to comply
Our treatment can cure cancer.  This advertising is considered misleading and deceptive, and may create an unreasonable expectation of beneficial treatment.

This statement is not supported by acceptable evidence and therefore may mislead consumers. 

This statement is not acceptable in advertising, so it will need to be removed.

Pay particular attention to:

  • how language is used in your advertising as consumers could be misled, and
  • words such as ‘cure’ should be used carefully, as it is often not possible to establish a causal connection between providing a health service and subsequent patient improvement.

Example 2 - Considered misleading and deceptive, not supported by acceptable evidence

Advertising content Why it is non-compliant Changes that would help this advertising to comply

Our treatment can help with:

This advertising is considered misleading and deceptive.

This advertising lists a broad range of conditions, and it’s not clear how the treatment being advertised will help with each condition listed.

This advertising is unqualified and/or is not supported by acceptable evidence and therefore may mislead consumers.

What is acceptable to include in a list of conditions depends on the regulated health service advertised and whether there is evidence to support the claim being made.

The treatment advertised may be able to help manage symptoms often associated with a condition (e.g. muscular tension associated with asthma) rather than treating the condition itself.

If this is made clear in your advertising then you will be unlikely to mislead consumers.

For example, if the regulated health service being advertised is a manual therapy, this statement could be corrected to read:

  • Back pain 
  • Neck pain
  • Asthma
  • Depression
  • Behavioural disorders

Our treatment can help with

  • Back pain 
  • Neck pain 
  • Managing symptoms such as muscular tension often associated with asthma
 

Pay particular attention to:

  • listing health conditions in your advertising as this is often misleading.

Example 3 - Considered misleading and deceptive, not supported by acceptable evidence

Advertising content Why it is non-compliant Changes that would help this advertising to comply

And now it can’t be disputed. Our care works and now we know why it’s better than pain-killing drugs with side effects.

This advertising is considered misleading and deceptive.

This claim  may mislead consumers as it does not include complete information and/or is not substantiated with acceptable evidence.

This statement is not acceptable in advertising, so it will need to be removed.

Pay particular attention to:

  • use of comparisons in advertising often risks misleading and/or deceiving the public
  • make sure to include complete information, it can be difficult to include substantiating information when comparing one health service with another, and
  • check out 6.2.1 of the Advertising guidelines.

Example 4 - Considered misleading and deceptive, not supported by acceptable evidence

Advertising content Why it is non-compliant Changes that would help this advertising to comply

Our long experience of successfully treating patients with mental health issues shows that we can effectively treat depression, anxiety and many other mental health conditions.

This advertising is considered misleading and deceptive.

This claim may mislead consumers as it is not substantiated with acceptable evidence.

This statement is not acceptable in advertising, so it will need to be removed.  

Pay particular attention to:

  • personal experience and anecdotes are not acceptable evidence and do not justify making claims in advertising, and
  • if there is not acceptable evidence that justifies making the claim in advertising, leave it out.

Make sure you read all our examples and other resources to help you check and correct your advertising.

Disclaimer: The information used in these examples is for guidance only. If, after reviewing the examples listed, you are still unsure if your advertising complies with the National Law we recommend you seek advice from your professional association, insurer and/or independent legal adviser.

Advertisers of regulated health services (both individuals and organisations) must not advertise health benefits of their services when there is not acceptable evidence that these benefits can be achieved.

Under the National Law, the evidence needed for therapeutic claims in advertising and the evidence to be used in clinical decision-making about particular treatments is different. A higher standard of evidence is required to support claims made in advertising regulated health services. This is because in advertising, a statement may be easily misinterpreted or taken out of context and then become misleading. It is the overall impression created by the advertising that will be judged and, as such, it is possible for statements that are technically true to be misleading or deceptive in certain contexts.

The National Law bans advertising that creates an unreasonable expectation of beneficial treatment. The claims of beneficial treatment can range from unsubstantiated scientific claims through to unsubstantiated miracle cures.

In considering whether there is acceptable evidence to make a claim in advertising, you cannot ignore evidence of a higher level (for example, evidence from a single study would not be acceptable evidence if it is contradicted by a systematic review). Advertising claims that are contrary to high-level evidence are unacceptable.

You should make sure that any information you publish about your services is factual and verifiable.

  1. You should only make justifiable claims about the quality or outcomes of your services in any information you provide to patients. 
  2. You should not make claims either directly to clients or in advertising or promotional materials about the efficacy of treatment or services you provide if those claims cannot be substantiated with acceptable evidence. 
  3. You must not use your possession of a particular qualification or membership to mislead or deceive clients or the public as to your competence in a field of practice or ability to provide treatment.

The science of advertising - what we mean by using ‘acceptable evidence’

There are many aspects that are taken into consideration when evidence is reviewed and each claim is assessed on its merits alongside the evidence presented to support it.

Relevant issues we consider when assessing whether there is acceptable evidence for therapeutic claims include:

  • Is the evidence relied on objective and based on accepted principles of good research? Is the evidence from a reputable source? For example a peer-reviewed journal. 
  • Do the studies used provide clear evidence for the therapeutic claims made or are they one of a number of possible explanations for treatment outcomes? 
  • Have the results of the study been replicated? Results consistent across multiple studies, replicated on independent populations, are more likely to be sound. 
  • Has the evidence been contradicted by more objective, higher quality studies? This type of evidence is not acceptable.

To help practitioners, we have published some FAQ about advertising and evidence.

Both specific claims and the overall impression of advertising have potential to be misleading. In some cases we may identify a specific claim or claims that are concerning. In assessing whether advertising claims are misleading or deceptive or create an unreasonable expectation of beneficial treatment we will assess specific claims, and where relevant will also consider the advertising as a whole from the perspective of a member of the public.

The following types of studies will generally not be considered acceptable evidence for advertising claims:

  • studies involving no human subjects 
  • before and after studies with little or no control or reference group 
  • self-assessment studies 
  • anecdotal evidence based on observations in practice 
  • outcome studies or audits, unless bias or other factors that may influence the results are carefully controlled, and/or 
  • studies that are not generalisable to the advertising audience.

The evidence base for clinical practice is constantly developing so it is important to make sure that the evidence you rely on is current.

Practitioners must take care to not mislead or create false impressions when using scientific information in advertising. Practitioners who include scientific information in advertising must ensure that the information is presented in a manner that is accurate, balanced and not misleading and use wording that is understood readily by the target audience.

The advertising must clearly identify the relevant researchers, sponsors and the academic publication in which the source scientific information or results appear, and be from a reputable (for example, peer-reviewed) and verifiable source.

 
 
 
Page reviewed 8/08/2017