Advertising and Marketing

"Advertising" and "marketing" are business terms of art describing related but different activities. The American Marketing Association defines advertising as "the placement of announcements and persuasive messages in time or space purchased in any of the mass media by business firms, nonprofit organizations, government agencies, and individuals who seek to inform and/or persuade members of a particular target market or audience about their products, services, organizations, or ideas." Marketing is more broadly defined as "the activity, set of institutions, and processes for creating, communicating, delivering, and exchanging offerings that have value for customers, clients, partners, and society at large." (American Marketing Association)

Marketing may also be defined in laws and regulations, imposing various obligations and restrictions on commercial promotion falling within the statutory or regulatory definition. The final HIPAA omnibus rule of 2013, for example, defines marketing as making "a communication about a product or service that encourages recipients of the communication to purchase or use the product or service" (45 CFR § 164.501).

The U.S. Supreme Court has considered constitutional issues of free speech in advertising and marketing and concluded that commercial speech may be restricted by law in time, place, and manner—provided that governmental restrictions serve a significant governmental interest and ample channels for communication of the information remain available. (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc.).

State consumer protection laws, unfair trade practice laws, state privacy laws, and department of health regulations may also bear on healthcare facilities' commercial promotion efforts.

Because of the many details and nuances at the intersection of marketing, unfair competition, and various federal and state laws and regulations, facilities should ensure that factual, legal, and risk analyses are conducted for each marketing arrangement in each jurisdiction in which the organization owns or operates facilities. Risk managers can help ensure compliance by taking a collaborative...