Advertising of doctors and health centers: crossover between liberalization and restriction

By Nathalie Boudet-Gizardin, partner and Linah Bonneville, intern.

The question of the right to publicity for doctors and health establishments is significant. After having maintained, since 1947, a general and absolute ban on the use of "all direct or indirect advertising processes"For health professionals, and in particular for doctors, the French legislator has granted them, reluctantly, a very regulated right to use advertising, in order to bring its regulations into line with European law.

The report of the Council of State of May 3, 2018 (1) revealed that healthcare professionals were facing a distortion of competition. On the one hand, certain healthcare providers not subject to the code of ethics could advertise their activities (osteopaths, sports coaches, etc.) unlike healthcare professionals who were not authorized to do so. On the other hand, some salaried or self-employed practitioners benefited indirectly from the publicity carried out by the structures in which they practiced, themselves not subject to the code of ethics.

Thus, the relaxation of advertising rules in favor of healthcare professionals was motivated by the need to correct this distortion of competition, in addition to the need to comply with European regulations. However, it is inversely proportional to the decrease in the rights of health centers in terms of advertising.

 

I - A timid liberalization of advertising for health professionals

The six decrees of December 22, 2020 (2) have reversed the principle of banning advertising for health professionals (dental surgeons, podiatrists-podiatrists, nurses, midwives, doctors and masseurs-physiotherapists) by complying with European law.

It should be noted that the term "advertising" is however never used, the new text simply authorizing the free and honest communication of information " likely to contribute to the free choice of the practitioner by the patient, relating in particular to his professional skills and practices, his professional career and the conditions of his practice ».

However, this freedom of communication remains extremely restricted since the doctor's communication must not call on third-party testimonies, be based on comparisons with other doctors or establishments and not encourage unnecessary recourse to acts of prevention or care. Nor should it mislead the public.

Finally, when the doctor presents his activity on the Internet, he must be extra vigilant and according to the recommendations of the National Council of the Order of Physicians, in particular:

• refrain from any form of process intended to obtain priority digital referencing;
• commit to regularly updating the information provided online;
• ensure the reliability of the information and reference sites to which it refers through a link
• redouble vigilance in the event of intervention on social networks.

Finally, the doctor must always monitor the use made of his name, position or declarations and not allow the organizations, public or private, where he practices or to which he lends his support to use for commercial purposes. his name or his professional activity, as further provided for in article R.4127-20 of the public health code.

 

II - Towards a restriction of the rights of health centers in terms of advertising

Unlike healthcare professionals, health centers were not legally subject, until Ordinance No. 2018-17 of January 12, 2018, a ban on the use of advertising, not being by nature subject to the ethical obligations applicable to the healthcare professionals they employ.

In front of the distortion of competition resulting from this difference in treatment, the First Civil Chamber of the Court of Cassation has, in a judgment of principle of April 26, 2017 (3), made in connection with the Association for the development of access to dental care Addentis, judged as a health center, governed by the provisions of article L. 6323-1 of the public health code and which is responsible for delivering objective information relating, in particular, to the dental care services it offers to the public, may not, without engaging in unfair competition, resort to advertising methods concerning such services, likely to promote the development of the activity of the dental surgeons that it employs, since the latter are subject, by virtue of their code of ethics, to the prohibition of having recourse to such procedures.

The Ordinance of January 12, 2018 confirmed this decision, by specifying in article L.6323-1-9 of the Public Health Code devoted to health centers that "any form of advertising in favor of health centers is prohibited”.

Following the judgment of the Court of Cassation of April 26, 2017 and the publication of the Order of January 12, 2018, the legal debate continued. After being referred to the Paris Court of Appeal, the Addendis association filed a second appeal against the judgment rendered by the Paris Court of Appeal on July 1, 2021.

In a judgment of March 8, 2023, the Court of Cassation has just confirmed its case law of 2017 (4), based on the decision rendered by the Constitutional Council n° 2022-998 of June 3, 2022 which considered that the legislator of 2018, by prohibiting advertising at centers " pursued a motive of general interest ". Indeed, this prohibition applying to structures " which can be created and managed in particular by profit-making organizations is intended so that the centers “do not highlight” the conditions of patient care. In this, the law prevents the risk of developing an "intensive practice of care contrary" to the mission of dental centers as well as a practice "likely to affect the quality of the care provided".

In this context a law of March 9, 2023 has just been promulgated (5) containing various provisions for adaptation to European Union law. Cosmetic surgery centers were, until then, subject to a total ban on direct or indirect advertising, under penalty of losing their administrative authorization to operate.

France was, however, given formal notice in 2019 by the European Commission to comply with European law, the CJEU having in a famous "Vanderborght" judgment of May 4, 2017 ruled that a general and absolute ban on advertising was contrary to the directive " on e-commerce (Article 8 § 1 of Directive No. 2000/31/EC of the European Parliament and of the Council of 8 June 2000) and the freedom to provide services guaranteed by Article 56 of the Treaty on the Functioning of the Union European.

This is why the new paragraph 4 of article L.6322-1 of the Public Health Code, resulting from the law of March 9, 2023, tempers this principle of a general and absolute ban on the use of advertising, by providing that " The authorization is withdrawn if, in any form whatsoever, in favor of the establishment holding this authorization, a commercial communication, direct or indirect, unfair, detrimental to public health or which, by its nature, its presentation or its object, is likely to encourage minors to use the services offered by the establishment. »

In line with this fight against the growing advertising of aesthetic procedures, the National Assembly voted on March 30, 2023 the proposed law aimed at combating scams and abuses by influencers on social networks, providing for the prohibition of " persons exercising the activity of commercial influence by electronic means any promotion, direct or indirect, detrimental to the protection of public health, of acts, processes, techniques and methods for aesthetic purposes. »

However, it is necessary to wait for the promulgation of this law and the publication of the implementing decrees in order to be able to fully understand the extent of this new ban.

 

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1 - COUNCIL OF STATE - Rules applicable to healthcare professionals in terms of information and advertising Study adopted by the plenary general assembly on May 3, 2018

2 - Decree no. 2020-1658 for dental surgeons, decree no. 2020-1659 for podiatrists-podiatrists, decree no. 2020-1660 for nurses, decree no. 2020-1661 for midwives, decree no. ° 2020-1662 for doctors, decree n° 2020-1663 for masseurs-physiotherapists.

3 - Court of Cassation, Civil, Civil Chamber 1, April 26, 2017, 16-14.036 16-15.278

4 - Court of Cassation - First Civil Chamber, March 8, 2023 / No. 21-23.234

5 - No. 2023-171