Brief Memo on Advertising to Private Stem Cell Clinics (Especially the “Affiliates” of the two Defendant Organizations)
The free pass given by the federal and state authorities on private stem cell clinic’s publicly professed exuberance (aka web site advertising) is coming to an end.
By early 2019, I expect both federal and some state regulators to bring lawsuits and/or announce settlements with more than a few private stem cell clinics, many of which are affiliates of the two stem cell networks which are currently defendants in the FDA injunction lawsuits in California and Florida.
Having looked over a web site or two, it might be time for you folks to rethink your marketing strategy. The authorities have a different and quite technical view of what constitutes false advertising and what constitutes substantiation of actual and implied claims. And don’t even get me started on their view on implied claims. It’s not to be believed.
It’s the end of the year and now would be a good time to implement a correction plan for advertising which is likely to be viewed by the authorities as deceptive trade practices, for a couple reasons. First, of course it’s always to better to comply with what the authorities think is the law, which is better than having to duke-it-out with the authorities in an injunction action brought by the FDA/FTC or the state’s attorney general office, because it’s not really a fair fight. There might be arguments to be made in defense of some commonly made stem cell claims. However, per the above, the best choice is not to have to make them.
Second, there could be medical board implications for physicians who consent to or have a judicial finding of false advertising. That opens-up a whole other front, and who needs that!
In short, now is a good time.
Rick Jaffe, Esq.