writing
Attorney and Doctor, Atsumi Sakai Law Office
Outside Director (Audit and Supervisory Committee Member) MEDIUS Holdings Co., Ltd.
Junko Echigo
Graduated from the University of Tsukuba School of Medicine. Completed the Graduate School of Medicine at the same university and the Law School of Toin University of Yokohama. Registered as a lawyer in 2010 and started working as an in-house lawyer at Kanazawa University Hospital in the same year. Worked at Toranomon Hospital since 2015. Joined Atsumi & Sakai Law Office from January 2022. Outside Director of MEDIUS Holdings Co., Ltd.
In the previous issue, we explained the medical advertising applicability, and the requirements for lifting restrictions in exceptional cases where content other than that specified by law can be included, although content other than that which can be advertised is prohibited. In this issue, we will explain the content of advertisements that are prohibited when actually creating advertisements for medical institutions, even if the requirements for lifting restrictions are met.
False advertising is prohibited because "providing patients with information that is significantly different from the facts may result in them losing appropriate opportunities to receive medical treatment or receiving inappropriate medical care." It also states that "advertising with content that damages dignity and other content that is inappropriate for medical advertising should be strictly avoided." This includes photos of treatment effects that have been altered to be untrue, and guarantees of results.
In particular, false advertising is expressly prohibited if:
(1) Comparative advertising
(2) Exaggerated advertising
(3) Advertisements that violate public order and morals
(4) Advertising testimonials about the content or effects of treatments, etc., based on subjective opinions or hearsay from patients or other individuals
(5) Advertisements that include before or after photos of treatments that may mislead patients about the content or effects of treatments.
We will explain this based on the contents of Medical Advertising Guidelines 1 and Q&A Regarding Medical Advertising Guidelines 2 (hereinafter referred to as the Guidelines, etc.).
(1) Advertising that claims to be superior to other hospitals or clinics (comparative advertising)
For example, expressions such as "best," "No. 1," "No. 1 in the prefecture," and "No. 1 in Japan" are prohibited because "even if they are true, they may give a significant misleading impression of excellence." It also states that "while descriptions of achievements, etc. are not necessarily prohibited, if requested, rational evidence supporting the content must be provided and objectively demonstrable."
Presenting data is convenient for patients, but numbers can take on a life of their own, so care must be taken to avoid misunderstandings. For this reason, in this age of EBM (Evidence-based medicine), it is important to note that evidence must also be presented.
Other expressions that may lead to a false impression of superiority, such as "emphasizing ties with famous people" and slandering other hospitals, are also prohibited.
Incidentally, introductory articles, excluding advertisements in newspapers and magazines, are only permitted as long as their content does not constitute comparative advertising, so they may not be permitted depending on the content. In particular, if the content is ranking, it does not constitute advertising when published by a publisher, etc., but publishing or quoting it on your own hospital's website, etc., constitutes comparative advertising, so care must be taken.
(2) Exaggerated advertising
The guidelines list as prohibited expressions such as "optimal," "always," and "absolute" that imply effectiveness, expressions that suggest special permission has been obtained when in fact it can be implemented with notification, and expressions that mislead by providing information that lacks scientific evidence.
It is also said that listing only the total number of surgeries over a long period of time in general terms without providing any data to support the number of surgeries may constitute exaggerated advertising. As an example of the correct way to list the number of surgeries, it is recommended to list the number of surgeries by year and surgical procedure. It is important to note that the same data may be deemed to be exaggerated advertising depending on how it is presented.
(3) Advertisements that violate public order and morals
Examples of prohibited content include obscene or cruel images or videos, or expressions that promote discrimination.
(4) Advertising testimonials about the content or effects of treatments, etc., based on subjective opinions or hearsay from patients or other individuals
Medical institutions are not permitted to publish the experiences and impressions of patients and their families with the intent of encouraging others to visit the institution. This is because such information is influenced by the individual's condition and subjective opinion, and may be misleading. Reprinting the results of patient surveys is also prohibited. On the other hand, individual patients who have not been requested by a medical institution are not prohibited from posting their own treatment experiences on personal websites, social media, review sites, etc., as this does not encourage others to visit the institution.
Furthermore, stealth marketing (stealth marketing) advertising will be prohibited as an unfair representation under the Act on Unjustifiable Premiums and Misleading Representations from October 2023. A clinic that offered discounts on the condition that customers post positive reviews on a major review site was prosecuted in June 2024 as the first case of violation of the Act.
(5) Advertisements that include before or after photos of treatments that may mislead patients about the content or effects of treatments.
This does not mean that all photos before or after treatment are prohibited, but rather that "this does not apply if detailed explanations are provided regarding the treatment details, costs, etc. that are normally required, as well as the main risks and side effects of the treatment, etc." However, as photos after treatment are not eligible for advertising, they must also meet the requirements for lifting restrictions.
The Ministry of Health, Labour and Welfare conducts internet patrols to monitor and instruct websites related to medical practices, etc. This is a system that not only accepts reports from consumers, but also has commissioned businesses search for online information themselves and issue administrative guidance for problematic postings. There are also reports of results3, and it is clear that a considerable number of websites have received guidance, mainly in the fields of beauty and dentistry.
In medical advertising, from the perspective of safety, there are detailed regulations in laws and guidelines regarding the content that can be advertised. It is important to be aware that not only are there regulations, but that authorities also patrol the area, and to be mindful of proper advertising.
1. Guidelines for advertising related to medical or dental practices, hospitals, or clinics (Medical Advertising Guidelines)
https://www.mhlw.go.jp/content/10800000/001304536.pdf
2. Q&A regarding medical advertising guidelines
https://www.mhlw.go.jp/content/001231198.pdf
3. About the Internet Patrol Project (2021)
https://www.mhlw.go.jp/content/10800000/001036049.pdf
writing
Attorney and Doctor, Atsumi Sakai Law Office
Outside Director (Audit and Supervisory Committee Member) MEDIUS Holdings Co., Ltd.
Junko Echigo
Graduated from the University of Tsukuba School of Medicine. Completed the Graduate School of Medicine at the same university and the Law School of Toin University of Yokohama. Registered as a lawyer in 2010 and started working as an in-house lawyer at Kanazawa University Hospital in the same year. Worked at Toranomon Hospital since 2015. Joined Atsumi & Sakai Law Office from January 2022. Outside Director of MEDIUS Holdings Co., Ltd.
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