Tenn. Comp. R. & Regs. 1200-30-01-.17 - ADVERTISING

(1) Policy Statement. The lack of sophistication on the part of many of the public concerning alcohol and drug abuse counseling services, the importance of the interests affected by the choice of an alcohol and drug abuse counselor, and the foreseeable consequences of unrestricted advertising by alcohol and drug abuse counselors which is recognized to pose special possibilities for deception, require that special care be taken by alcohol and drug abuse counselors to avoid misleading the public. The alcohol and drug abuse counselor must be mindful that the benefits of advertising depend upon its reliability and accuracy. Since advertising by alcohol and drug abuse counselors is calculated and not spontaneous, reasonable regulation designed to foster compliance with appropriate standards serves the public interest without impeding the flow of useful, meaningful, and relevant information to the public.

(2) Definitions

(a) Advertisement - Informational communication to the public in any manner designed to attract public attention to the practice of an alcohol and drug abuse counselor who is licensed to practice in Tennessee.

(b) Licensee - Any person holding a license to practice as a Licensed Alcohol and Drug Abuse Counselor in the State of Tennessee. Where applicable this shall include partnerships and/or corporations.

(c) Material Fact - Any fact which an ordinary reasonable and prudent person would need to know or rely upon in order to make an informed decision concerning the choice of practitioners to serve his or her particular needs.

(3) Advertising Content. The following acts or omissions in the context of advertisement by any licensee shall constitute unethical conduct, and subject the licensee to disciplinary action pursuant to Rule 1200-30-01-.15:

(a) Claims that the services performed, personnel employed, or office equipment used are professionally superior to that which is ordinarily performed, employed, or used, or that convey the message that one licensee is better than another when superiority of services, personnel, or equipment cannot be substantiated.

(b) The misleading use of an unearned degree.

(c) Promotion of professional services which the licensee knows or should know are beyond the licensee's ability to perform.

(d) Techniques of communication which intimidate, exert undue pressure or undue influence over a prospective client.

(e) Any appeals to an individual's anxiety in an excessive or unfair manner.

(f) The use of any personal testimonial attesting to a quality or competency of a service or treatment offered by a licensee that is not reasonably verifiable.

(g) Utilization of any statistical data or other information based on past performances for prediction of future services, which creates an unjustified expectation about results that the licensee can achieve.

(h) The communication of personal identifiable facts, data, or information about a client without first obtaining patient consent.

(i) Any misrepresentation of a material fact.

(j) The knowing suppression, omission or concealment of any material fact or law without which the advertisement would be deceptive or misleading.

(k) Misrepresentation of credentials, training, experience, or ability.

(l) Failure to include the corporation, partnership or individual name, address, and telephone number of licensees in any advertisement. Any corporation, partnership or association which advertises by use of a trade name or otherwise fails to list all licensees practicing at a particular location shall:

1. Upon request provide a list of all licensees practicing at that location; and

2. Maintain and conspicuously display a directory listing all licensees practicing at that location.

(m) Failure to disclose the fact of giving compensation or anything of value to representatives of the press, radio, television or other communicative medium in anticipation of or in return for any advertisement (for example, newspaper article) unless the nature, format or medium of such advertisement makes the fact of compensation apparent.

(n) After thirty (30) days of the licensee's departure, the use of the name of any licensee formerly practicing at or associated with any advertised location or on office signs or buildings. This rule shall not apply in the case of a retired or deceased former associate who practiced in association with one or more of the present occupants if the status of the former associate is disclosed in any advertisement or sign.

(o) Stating or implying that a certain licensee provides all services when any such services are performed by another licensee.

(p) Directly or indirectly offering, giving, receiving, or agreeing to receive any fee or other consideration to or from a third party for the referral of a client in connection with the performance of professional services.

(q) Making false, deceptive, misleading or fraudulent statements regarding fees.

(4) Advertising Records and Responsibility

(a) Each licensee who is a principal partner, or officer of a firm or entity identified in any advertisement, is jointly and severally responsible for the form and content of any advertisement. This provision shall also include any licensed or certified professional employees acting as an agent of such firm or entity.

(b) Any and all advertisements are presumed to have been approved by the licensee named therein.

(c) A recording of every advertisement communicated by electronic media, and a copy of every advertisement communicated by print media, and a copy of any other form of advertisement shall be retained by the licensee for a period of two (2) years from the last date of broadcast or publication and be made available for review upon request by the Board or its designee.

(d) At the time any type of advertisement is placed, the licensee must possess and rely upon information which, when produced, would substantiate the truthfulness of any assertion, omission or representation of material fact set forth in the advertisement or public communication.

(5) Use of Titles - Any person who possesses a valid, current and active license issued by the Board that has not been suspended or revoked has the right to use the title "Licensed Alcohol and Drug Abuse Counselor" and to practice alcohol and drug abuse counseling, as described in T.C.A. §§ 68-24-608 and 68-24-609. Any person licensed by the Board to whom this rule applies must use the title authorized by this rule in "advertising" [as that term is defined in rule 1200-30-01-.01(1) ] he or she publishes or the failure to do so will constitute an omission of a material fact which makes the advertisement misleading and deceptive and subjects the licensed alcohol and drug abuse counselor to disciplinary action pursuant to rule 1200-30-01-.15.

(6) Advertising Conduct

(a) Licensees who engage others to create or place public statements that promote their professional practice, products, or activities retain professional responsibility for such statements.

(b) If licensees learn of deceptive statements about their work made by others, licensees must make reasonable efforts to correct such statements.

(c) Licensees do not compensate employees of press, radio, television or other communication media in return for publicity in a news item.

(d) A paid advertisement relating to the licensee's activities must be identified as such, unless it is already apparent from the context.

(6) Severability. It is hereby declared that the sections, clauses, sentences and parts of these rules are severable, are not matters of mutual essential inducement, and any of them shall be rescinded if these rules would otherwise be unconstitutional or ineffective. If any one or more sections, clauses, sentences or parts shall for any reason be questioned in court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.

Notes

Tenn. Comp. R. & Regs. 1200-30-01-.17

Original rule filed May 25, 1994; effective August 9, 1994. Repeal and new rule filed January 30, 1997; effective May 30, 1997. Repeal and new rule filed December 28, 1999; effective March 12, 2000. Amendment filed May 18, 2007; effective August 1, 2007. Amendment filed November 26, 2008; effective February 9, 2009.

Authority: T.C.A. §§ 4-5-202, 4-5-204, 63-1-145, 63-1-146, 68-24-605, 68-24-606, 68-24-608, and 68-24-609.