Solicitation and Texas Law
Written by Editor   
Thursday, June 04, 2015 12:00 AM

by Bryan Snoddy, General Counsel

Roughly one of every five phone calls and inquiries received by the Board’s legal staff is “Can I advertise this way” or “Will I get in trouble if I say this?

Let’s try to address some of those issues by reflecting upon some fairly concrete concepts that are well established in the law and the Board’s rules.

The first thing to recall is that the Board is a state agency of limited power. The primary limits on the power of the Board come from law that is enacted by the Legislature. As in the last Newsletter (Volume II, Issue 3- January 2015), the Texas Chiropractic Act provides both the source and the limitations on the Board’s authority.

Next, let’s examine a few of the important parts of the Chiropractic Act. The initial reference to advertising under the Act is located at section 201.155. This section provides that the Board may not adopt rules restricting advertising or competitive bidding by a person regulated by the Board except to prohibit false, misleading or deceptive practice by that person.

But it doesn’t stop there. The Board is also precluded from restricting the use of any advertising medium, restricting the person’s personal appearance or the use of the person’s voice, restricting the size or duration of an advertisement or restricting the use of a trade name.

What this means is that there is a lot of freedom to advertise in any way that a person believes will be most effective. But this should not been taken as a carte blanche opportunity to advertise without care.

This is probably a good time to have a short discussion about the various social media platforms used for advertising. In short, whether you choose Living Social, Groupon, Yelp, Google or a whole host of others, there is nothing illegal per se about using these platforms.

Please be aware that Texas has an anti- solicitation law and the Board has rules concerning advertising. As long as there is compliance with those laws and the Board’s rules, the use of these sites or any other advertising mechanism may be appropriate. The difficulty has arisen when some contractual agreements involved fee-splitting which runs afoul of the law.

Because each contractual arrangement for various advertising mechanisms are not the same, it is not possible to declare that they are all in compliance with existing law. Some may be and others may not. In general, in any situation with critical variables, we encourage you to obtain legal counsel to ensure compliance with the law.

It is also important to exercise caution in the tone and manner in which you advertise. We know that everyone believes that they provide great chiropractic service to their patients, but how you say that can create difficulties that you would probably like to avoid.

Under section 201.502((a)(11) of the Chiropractic Act, advertising professional superiority, or advertising the performance of professional services in a superior manner, if that advertising is not readily subject to verification, can lead to an enforcement violation. The simple question to ask is “Can I objectively prove this statement?” If not, it is probably best to state it as an opinion or not to make the statement at all.

This doesn’t mean that you lose the ability to be creative but there are limits. In general, the law distinguishes puffery from false advertisements.

Puffery is the legal concept of a statement that is so unbelievable that no reasonable person would believe it to be true.

The best example I can find was articulated in the fight with Pizza Hut over the “Better Pizza, Better Ingredients” slogan used by Papa John’s. The Court concluded that a slogan, standing alone, is not an objectifiable statement of fact upon which that it would not rise to the level of an offense of the Lanham Act – the federal law which controls trademark usage and prohibits false advertisements.

The guidance to take from this is that we should draw a distinction of statements concerning that which can be verified as objective fact from that which cannot be verified as objective facts or is an individual’s opinion.

The reason this division is necessary is because the First Amendment guarantees the right of a person to give their opinion.

But on the other side of the coin, the Chiropractic Act is in place to promote the welfare and safety of the citizens of the State of Texas.

Source: Texas Chiropractic Board Report; April 2015 Volume II, Issue 4